Director of the Fair Work Building Industry Inspectorate v Abbott

Date of hearing: 23 July 2013

Place: Perth

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 128

Counsel for the Applicant: Mr K M Pettit

Solicitor for the Applicant: Clayton Utz

Counsel for the 218th and 219th Respondents: Ms K A Vernon

Solicitor for the 218th and 219th Respondents: Construction, Forestry, Mining and Energy Union

Counsel for the CFMEU Employee Respondents: Mr J Fiocco

Solicitor for the CFMEU Employee Respondents: Fiocco's Lawyers

Counsel for the 106th, 220th and AMWU Employee Respondents: Mr R Hooker

Solicitor for the 106th, 220th and AMWU Employee Respondents: Gibson & Gibson Lawyers

Director of the Fair Work Building Industry Inspectorate v Abbott (No 6)

CORRIGENDum 1 At paragraph 35(s) the respondent Raymond Jones is referred to as "Respondent 109". The correct respondent number for Mr Jones is "Respondent 108". 2 Page 32 Schedule A - Employee Respondents: Respondent No 53 Norman Dodgin was listed for 8 days unlawful industrial action and subject to a penalty of $10,000. This should be amended to read 7 days unlawful industrial action with a penalty of $8,750. 3 Page 36: Respondent 108, Raymond Jones should be deleted from Schedule B. I certify that the preceding three (3) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate: Dated: 21 November 2013 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 230 of 2008

BETWEEN: DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE

JUDGE: GILMOUR J DATE OF ORDER: 18 September 2013 WHERE MADE: PERTH

1. Pecuniary penalties be imposed against the employee respondents, listed in the attached Schedule A (Employee Respondents), in accordance with the amounts specified, for their respective contraventions of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth), s 496(1)of the WR Act, and the breaches of the relevant provisions of the Union Collective Agreements.
2. The pecuniary penalties ordered to be paid in accordance with order 1 above, subject to order 3, shall be paid to the Commonwealth within 60 days of this order.
3. The penalty imposed as against the Employee Respondents listed in the attached Annexure B shall in each case be suspended, as to 50% of the penalty, for a period of three years (the period) and to that extent, at the expiry of the period, shall be discharged as against such of them that have not, during that period, contravened any legislation which regulates industrial or employment standards.
4. The applicant shall pay fifty percent of the 218th and 219th respondents' costs, including any reserved costs, to be taxed if not agreed.
5. Each Employee Respondent, including the 106th respondent in his capacity as an Employee Respondent, shall pay fifty percent of the applicant's costs in respect of that respondent, to be taxed if not agreed up until the following dates: 5.1 3 March 2011 in relation to the Employee Respondents represented by Gibson & Gibson, and also the costs of and incidental to the hearing on 23 July 2013 (the Hearing), including the preparation of submissions on penalty and costs; and 5.2 4 March 2011 in relation to the Employee Respondents represented by Fiocco's Lawyers and the Defaulting Respondents (as defined in the order dated 24 March 2011), and also the costs of and incidental to the Hearing including the preparation of submissions on penalty and costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 230 of 2008

BETWEEN: DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE

JUDGE: GILMOUR J DATE: 18 September 2013 PLACE: PERTH

REASONS FOR JUDGMENT 1 These reasons concern the question of penalties, if any, to be imposed on the "Employee Respondents" as well as what costs orders ought be made in relation to the proceedings which culminated in orders made on 7 October 2011 but also having regard to the successful appeal from part of those orders brought by the 218th respondent (CFMEU) and the 219th respondent (Upton): Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (as successor to the Australia Building and Construction Commission) (2012) 209 FCR 448 (CFMEU (No 1)). 2 The "Employee Respondents" are 117 individuals who were employed by CBI Constructors Pty Ltd (CBI) who are named as respondents in the order of 7 October 2011, except for the 218th - 221st respondents. 3 The penalties to which the Employee Respondents are liable under s 719(1) of the Workplace Relations Act 1996 (Cth) (the WR Act) arise in relation to contraventions of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (the BCII Act) and ss 494(1) and 496(1) of the WR Act, as well as breaches of the Australian Manufacturing Workers' Union (AMWU) Collective Agreement and the Construction, Forestry, Mining and Energy Union (CFMEU) Collective Agreement referred to below. 4 There are two categories of Employee Respondents: (a) Defaulting Employee Respondents - collectively, the 19th, 110th, 113th, 195th and 201st respondents who are deemed to have made admissions consequent upon their non-compliance with orders of the Court and the Federal Court Rules: Order dated 24 March 2011; and (b) all other Employee Respondents named in the Order, except for the 218th - 221st respondents, being the CFMEU, Upton and the AMWU. 5 The dispute the subject of this proceeding related to the Employee Respondents' action against their employer's, CBI's, refusal to make severance payments under the relevant Union Collective Agreements and re-employing those individuals on the next phase of construction works at the Phase V Expansion Project at Woodside Energy Limited's gas production facilities on the Burrup Peninsula in Western Australia (the Project): Australian Building and Construction Commissioner v Abbott (No 4) (2011) 211 IR 267 at [6]-[12] and [32]-[34] (the Decision). 6 These reasons should be read in conjunction with my reasons for the Decision. 7 There were two relevant Union Collective Agreements: CBI Constructors Pty Ltd North West Shelf LNG Phase V Expansion Project (AMWU) Collective Agreement 2006 and CBI Constructors Pty Ltd North West Shelf LNG Phase V Expansion Project (CFMEU and AWU) Collective Agreement 2006 (Union Collective Agreements). 8 The applicant, the Director of the Fair Work Building Industry Inspectorate, who I will continue to refer to as the Australian Building and Construction Commissioner (ABCC), alleged that the respondents, who were bound by the operation of the Union Collective Agreements, also contravened s 494 of the WR Act as a result of the unlawful industrial action engaged in by the Employee Respondents on one or more of 14 October and 17-24 October 2008 (the Strike) occurring before the nominal expiry date of the Union Collective Agreements. The ABCC does not press for a separate penalty for contravention of s 494 of the WR Act: see the Decision at [26]; and s 735 of the WR Act which prevents the application of two penalty provisions for what is essentially the same conduct.

Maximum penalties 9 Section 38 of the BCII Act is a Grade A civil penalty provision. In accordance with s 49(2) of the BCII Act, the maximum penalty is 1,000 penalty units for a body corporate and 200 penalty units for an individual. 10 Section 4 of the BCII Act defines a "penalty unit" as having the meaning given by s 4AA of the Crimes Act 1914 (Cth). The amount of a penalty unit at the time of the relevant contraventions was fixed at $110. 11 Relevantly, the maximum penalty for each contravention of s 38 of the BCII Act, is for individuals, such as the Employee Respondents, $22,000. 12 In accordance with s 719(4) of the WR Act, the maximum penalties for contraventions of s 496 of the WR Act and breach of a Union Collective Agreement (both being an "applicable provision" under s 717 for the purposes of s 719(1)) is 60 penalty units for an individual and 300 penalty units for a body corporate. Relevantly, the maximum penalties for each such contravention is, for individuals such as the Employee Respondents, $6,600.

Statutory scheme 13 The main object of the BCII Act is to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole: s 3(1) of the BCII Act. 14 The BCII Act aims to achieve that object by the means set out in s 3(2). These include promoting respect for the rule of law and ensuring that building industry participants are accountable for their unlawful conduct.

General penalty principles 15 The overriding principle is to ensure that the sentence is proportionate to the gravity of the conduct: Attorney-General v Tichy (1982) 30 SASR 84. 16 The purposes to be served by the imposition of penalties are threefold: (a) punishment, which must be proportionate to the offence and in accordance with prevailing standards; (b) deterrence, both personal (assessing the risk of re-offending) and general (a deterrent to others who might be likely to offend); and (c) rehabilitation. Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 at [93]-[94] per Lander J. 17 The task of a sentencing judge is one of "instinctive synthesis": Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at [27] per Gray J and [55] per Graham J. This requires a court to take into account all relevant factors and to arrive at a single result which takes due account of them all: Wong v The Queen (2001) 207 CLR 584 at [74]-[76]. 18 Proportionality and consistency commonly operate as a final check on the penalty assessed: Australian Ophthalmic Supplies at [54] per Graham J. 19 Courts exercising industrial jurisdiction have identified a range of factors which may be relevant to the circumstances of a particular case when assessing appropriate penalty: for example, Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 at [8]; Construction, Forestry, Mining and Energy Union v Hamberger (2003) 127 FCR 309 at [51]. 20 However, the courts have warned against reliance on checklists because it risks transforming the process of instinctive synthesis into the application of a rigid catalogue of matters for attention. In Australian Ophthalmic Supplies at [91], Buchanan J observed: [91] …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 obligation ... 21 The courts also warn against undue reliance on a comparison of the case the subject of the assessment with any other particular case so as to derive from it the amount of penalty to be fixed: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 295. 22 Contravention of industrial laws are regarded more seriously than was generally the case in the past. In Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467 at [72], Merkel J said: [72] … The legislature has, over time, also moved to increase the penalties that may be imposed in respect of unlawful industrial conduct. In my view, any light handed approach that might have been taken in the past to serious, wilful and ongoing breaches of the industrial laws should no longer be applicable ... These observations were endorsed by a Full Court of this Court in Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357 at [62] per Branson and Lander JJ.

Relevant considerations 23 Bearing in mind the warning against applying a rigid catalogue of matters, the considerations potentially relevant to the assessment of penalty for a contravention of the BCII Act include: (a) the nature and extent of the conduct which led to the breaches; (b) the circumstances in which that relevant conduct took place; (c) the nature and extent of any loss or damage sustained as a result of the breaches; (d) whether there had been similar previous conduct by the respondent(s); (e) whether the breaches were properly distinct or arose out of the one course of conduct; (f) the size of the business enterprise involved; (g) whether or not the breaches were deliberate; (h) whether senior management was involved in the breaches; (i) whether the party committing the breach had exhibited contrition; (j) whether the party committing the breach had taken corrective action; (k) whether the party committing the breach had cooperated with the enforcement authorities; and (l) the need for specific and general deterrence. Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61 at [40] per Tracey J, applied in Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries (2010) 196 IR 365 at [159] by Jessup J. 24 In this case, the ABCC submits, as an aggravating factor relevant to the Employee Respondents, the unions counselled against strike action, and counselled in favour of a return to work, which the Employee Respondents disregarded. 25 The judgment of Ryan J in Metropolitan Fire and Emergency Services Board v United Firefighters' Union of Australia (2005) 148 IR 242 at [17]-[18] (the reasons which were sustained on appeal in United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board (2006) 152 FCR 18) suggests that, in the context of the imposition of penalties in respect of an order of the Australian Industrial Relations Commission (AIRC), the following additional factors are relevant: (a) an absence of any basis for misapprehension about what the order commanded; (b) whether a party in breach has previously contravened an order; and (c) the need to deter participants in industrial relations from flouting or disregarding orders of the AIRC, especially where those orders have been made after a full hearing of both sides and have been tailored to met the exigencies of a particular industrial dispute. 26 Additionally, in Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd (2004) 26 ATPR 41-993, the Full Federal Court indicated that the view of the regulator, as a specialist body, is a relevant, but not determinative, consideration on the question of penalty. The views of the regulator on matters within its expertise (such as the regulator's view as to the deterrent effect of a proposed penalty) will usually be given greater weight than its views on more subjective matters: Mobil Oil at 51.

Nature and extent of the relevant conduct 27 The ABCC submits that the contraventions of the BCII Act and WR Act in this case were serious, and the assessment of the gravity of the conduct should have regard to the following: (a) The Strike involved the withdrawal of labour by a substantial number of workers that resulted in a large scale stoppage of work on a large infrastructure project that resulted in significant economic losses and Project delays; (b) The contraventions were deliberate in nature and in knowing defiance of the law, and the order made by AIRC on 14 October 2008 titled "CBI Constructors Pty Ltd Stabiliser 6 and Vapour Return Line Packages Order 2008 No 1" (the AIRC Order); (c) The Strike was a long duration - eight days, although there was a brief return to work in the interim, it may be classified as one course of conduct and thus, for the purposes of imposing penalties in this case, one contravention of the BCII Act, although there was a proper basis for classifying the conduct as two separate courses of conduct. This, particularly was so, because there were a number of early morning meetings over the period of the Strike when the decision to strike was considered afresh and was subject to a vote on those separate occasions; (d) The Strike occurred in contravention of the AIRC Order for a further seven days, with service of the AIRC Order being adequately effected; (e) the clear command of the AIRC, as expressed in the AIRC Order and accordingly, the absence of any basis for misapprehension of what the respondents, bound by the AIRC Order, were refrained from doing; and (f) the particular need for deterrence of participants in the industrial relations system from flouting orders of industrial tribunals such as the AIRC and the Fair Work Commission.

Deliberate conduct 28 Another factor to be weighed in the assessment is whether the contravening conduct was deliberate or part of a conscious act on the part of the contravener. Action undertaken in a deliberate industrial strategy weighs in favour of a higher penalty than where the contravention flowed from a view of the law which was not wholly untenable, or was genuinely believed to be correct: Australian Federation of Air Pilots v Skywest Airlines Pty Ltd (1996) 70 IR 284 at 286. Mere inadvertence will generally bring about a lighter penalty. 29 The conduct of the Employee Respondents in this proceeding could not be said to be inadvertent or genuinely believed to be lawful. The conduct of the Employee Respondents was a concerted exercise aimed at disrupting the performance of work, in order to exert pressure on CBI to make the redundancy/severance payments. 30 It cannot be said that any of the Employee Respondents were unaware of the unlawfulness of their conduct - they were so informed by CBI, by their own union representatives and by virtue of service of the AIRC Order.

Post-contravention conduct 31 Any cooperation, corrective conduct or contrition will have relevance to penalty assessment. 32 Cooperation can be exhibited in a range of ways, such as agreeing on facts, or agreeing on penalty. The timing of any such agreement, and the impact it has on the conduct of the trial and witnesses who would have been called at trial, are relevant: Stuart-Mahoney at [52]. 33 As to the Employee Respondents, other than the Defaulting Employee Respondents, the timing of the substantive agreement was not early in the proceeding. Numerous procedural steps, including evidence and significant trial preparation was still required. The Employee Respondents did not admit breaching the relevant terms of the Union Collective Agreements (referrable to s 719 of the WR Act), and this issue was the subject of contested submissions against all parties. 34 There is no evidence of corrective conduct or contrition. 35 Further, a number of Employee Respondents were involved in subsequent unlawful industrial action at the Pluto project - a construction project that neighbours the Project. That matter involved a seven day strike by over 1300 construction workers involving contraventions of s 38 of the BCII Act and s 418 of the Fair Work Act 2009 (Cth) (the FW Act) (the provision superseding s 496 of the WR Act): United Group Resources Pty Ltd v Calabro (No 5) (2011) 198 FCR 514. Findings of liability were made against all respondents in Calabro (No 5). The following 33 Employee Respondents had findings of liability made against them in Calabro (No 5) as a result of taking unlawful industrial action: (a) Respondent 1, Benjamin Abbott; (b) Respondent 3, Murray Arcaro; (c) Respondent 6, Sergio Baez; (d) Respondent 12, Roland Bazaez; (e) Respondent 20, Darren Bozall; (f) Respondent 42, Kenneth Cumming; (g) Respondent 49, Scott Devine; (h) Respondent 50, Claude Devos; (i) Respondent 59, Johannes Duplessis; (j) Respondent 65, Victor Faustino; (k) Respondent 67, Jose Ferreira; (l) Respondent 72, David Fraser; (m) Respondent 73, Salvatore Fronte; (n) Respondent 83, Tay Goodall; (o) Respondent 88, Duane Guyatt; (p) Respondent 94, Robert Holt; (q) Respondent 98, Vince Howes; (r) Respondent 107, Richard Jones; (s) Respondent 109, Raymond Jones; (t) Respondent 112, Shaun Keily; (u) Respondent 115, Darrin Lane; (v) Respondent 123, Donald MacKay; (w) Respondent 124, James Mann; (x) Respondent 134, Alistair McGuire; (y) Respondent 137, Dean Medland; (z) Respondent 140, Robert Mitchell; (aa) Respondent 173, Tom Sabine; (ab) Respondent 175, Michael Sanders; (ac) Respondent 193, Wayne Sutherland; (ad) Respondent 194, Allan Tamapua; (ae) Respondent 196, Michael Ticehurst; (af) Respondent 197, Neil Tollison; and (ag) Respondent 204, Mitchell Weir. 36 The ABCC does not submit that those Employee Respondents should be subjected to a higher penalty in this case, but that this subsequent conduct counts against any inference of contrition or corrective conduct in the present matter in respect of those respondents. I accept this submission.

Deterrence 37 The penalty must reflect the need for specific and general deterrence: Ponzio at [93]. 38 In Mobil Oil at [53], the Full Federal Court said that deterrence is "one of the principal justifications, if not the only justification for imposing civil penalties …". 39 In Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375, Le Miere J observed, at [74]: [74] The penalties should be sufficiently high to deter repetition by the contravener and by others who might be tempted to engage in contravening conduct. Deterrence is a primary objective of penalties. 40 Specific deterrence is directed to ensuring that the contraveners are not prepared to re-offend. 41 General deterrence is directed to ensuring that the penalty will act as a deterrent to others who might be likely to act unlawfully. The penalty should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by like-minded persons or organisations. If it does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the relevant provision: R v Gordon (1994) 71 A Crim R 459 at 468. 42 It is submitted by the ABCC that deterrence is the primary factor that the Court should consider in assessing the penalty in this case, particularly having regard to the statutory purpose of the BCII Act, and that a significant penalty is required because, as held by Lander J, in Ponzio at [93]: [93] … If the penalty does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the section....

Specific conduct of the Employee Respondents 43 The admissions made by the Employee Respondents are set out in the: (a) Amended Defence of AMWU Respondents dated 3 March 2011; and (b) Amended Defence of CFMEU Respondents dated 4 March 2011. 44 The Employee Respondents engaged in unlawful industrial action for varying lengths of time - between one and eight days. 45 The Employee Respondents admitted liability (the Decision at [180]) in relation to s 38 of the BCII Act and s 496 of the WR Act, albeit at a late stage of the proceeding. The initial proceedings, commenced by CBI were filed on 22 October 2008, and the ABCC filed its Further Amended Application and Statement of Claim in its capacity as the applicant on 19 February 2010. 46 However, the Employee Respondents did not admit liability until either 3 March 2011 (Employee Respondents represented by Gibson & Gibson) or 4 March 2011 (Employee Respondents represented by Fiocco's Lawyers). Before these admissions were made, the ABCC incurred significant expense as a result of the preparation of evidence for trial. 47 The Employee Respondents did not admit liability for breach of the Union Collective Agreements and should be afforded no discount for any early plea in this respect: the Decision at [23]. 48 The Employee Respondents have led no evidence of impecuniosity or of factors that might mitigate their unlawful conduct. On that basis, they should be afforded no leniency on these grounds. 49 In principle, there should not be any different approach taken on the question of penalty merely because the Employee Respondents are employees as opposed to a union, union official or employer: Hadgkiss v Aldin (2007) 164 FCR 394 at [102]. As is evident from the Second Reading Speech for the Building and Construction Industry Improvement Bill 2005 (Cth) on 9 March 2005: This bill reflect the government's commitment to ensuring the law applies and is observed equally by all participants in the building and construction industry, regardless of whether they are union officials, employers or workers. 50 The ABCC does not press for the imposition of a penalty against the 106th, 112th and 209th respondents for contravention of s 496 of the WR Act, on the basis that they were not absent on any day during the period 14 and 17-24 October 2008, other than for one day on 14 October 2008, the day that the AIRC Order came into operation. 51 The Employee Respondents' conduct ought be classified as more serious than it otherwise might have been, because the terms of the AIRC Order were very clear; there is no room to infer ambiguity: Hadgkiss at [93]. There is no evidence that any Employee Respondent was unaware of the terms of the AIRC Order. 52 The findings set out in the Decision identify a number of circumstances that are relevant to any consideration as to the degree of seriousness of the contraventions by the Employees Respondents: (a) The Employee Respondents' claim for severance/redundancy payments existed as at 1 October 2008: the Decision at [41] and [46]. (b) Being told by Upton on 13 October 2008 not to engage in the Strike: the Decision at [73]-[74]. (c) Being sent a letter from their employer, CBI, indicating that redundancies would not be paid: the Decision at [116]. (d) Being told by Upton at a meeting of CBI employees on 14 October 2008 that the employees should allow him and other union representatives more time to resolve the issue, yet taking industrial action notwithstanding: the Decision at [118] and [120]. (e) There being no findings that the Employee Respondents were told that they were acting with the support the unions: the Decision at [119]. (f) Importantly, the Employee Respondents acted in defiance of the AIRC Order which was clear in its terms and in engaging in the Strike, deliberately disregarded that order by continuing with the Strike on 17 - 24 October 2008: the Decision at [121] and [148]. (g) Being told by Windus and Upton on the evening of 14 October 2008 to return to work: the Decision at [128]. (h) Being issued with a letter from CBI on 16 October 2008 informing them that CBI could not "manufacture" redundancies which was in effect, what the Employee Respondents were seeking: the Decision at [142] and [144]. In defiance of this advice, the Strike continued from 17 October 2008 for a further seven days. (i) Being issued with a further letter on 17 October 2008 from CBI advising the Employee Respondents (a) of the AIRC Order, (b) that the Strike was illegal and (c) that each employee would be liable in legal proceedings. The Employee Respondents continued the Strike for a further seven days: the Decision at [148] and [162]. (j) They were bound by the Union Collective Agreements which had not expired, imposed obligations and regulated industrial issues. The Employee Respondents were bound to resolve all complaints or disputes in accordance with the issue resolution procedure in the Union Collective Agreements. They failed to comply with these contractual obligations that were "not merely hortatory or encouragements towards compliance" but rather were "contractual obligations arrived at securing harmony in the workplace and the resolution of disputes without resort to industrial action": the Decision at [255]-[256]; see also, Hadgkiss at [93]. (k) The Strike was not based on a reasonable concern by any respondent about any imminent risk to his or health or safety; it concerned payment of money. 53 Looking at the contraventions globally and taking all of these circumstances into account, I regard the conduct of the Employee Respondents as being at the lower end of the mid-range of seriousness, other than in relation to the contravention of s 496(1) WR Act, which I regard as at a higher level of seriousness. The individual penalties should reflect this. 54 I do not consider that the views of the Employee Respondents as to their "entitlement" to severance payments should be given any weight in mitigation of penalty. The Employee Respondents failed to follow the relevant issue resolution procedures in the Union Collective Agreements and instead decided to take unlawful industrial action in disregard of the objectives of the legislation and AIRC Order: Hadgkiss at [95]-[97].

Double punishment 55 The contravention of s 496 and the breach of the Union Collective Agreements contain common elements to the contravention of s 38 of the BCII Act - namely engaging in the Strike. This is a relevant consideration in weighing the appropriate penalty to be imposed: The Community and Public Service Sector Union v Telstra Corporation Limited (2001) 108 IR 228; Hadgkiss at [91]. 56 These matters, therefore, give rise to considerations of cumulation and concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at [45].

Mitigating factors 57 The admissions in relation to s 38 of the BCII Act and s 496 of the WR Act, made by the Employee Respondents prior to the trial, which avoided unnecessary expense, time and effort associated with a lengthy trial on these matters may, to some extent, support a discount of any penalties that might otherwise be imposed: Hadgkiss at [92]. However, the admissions were made only about two weeks prior to the trial. Apart from the costs of the trial, the ABCC still had to incur significant costs preparing for the trial against the Employee Respondents. Accordingly, the relevance of the admissions is that, to an extent, these saved costs both to the ABCC and the Court.

Quantum of penalty 58 The ABCC submits that significant penalties are warranted in the case of each of the Employees Respondents, having regard to the deliberate and calculated nature of their unlawful conduct, the number of employees involved in the Strike, the large scale disruption that is an obvious consequence of such action, the objects of the BCII Act and WR Act, and the need for specific and, most importantly, general deterrence: Hadgkiss at [60], [61], [63]-[66]; Woodside Burrup Pty Ltd v Construction, Forestry, Mining & Energy Union [2011] FCA 949 at [17]; Stuart-Mahoney at [58]. 59 The ABCC submits that taking into account the circumstances of the Strike and the seriousness of the Employee Respondents' conduct, penalties in the following ranges should be imposed pursuant to s 719 of the WR Act against the Employee Respondents. (a) For contravention of s 38 of the BCII Act by Employee Respondents who engaged in the Strike for between 3 - 8 days: a penalty of between 35% - 50% of the maximum ($7,700 - $11,000). (b) For contravention of s 38 of the BCII Act by Employee Respondents who engaged in the Strike for between 1 - 2 days: a penalty of between 25% - 35% of the maximum ($5,500 - $7,700). (c) For contravention of s 496(1) of the WR Act (contravention of the AIRC Order) against the Employee Respondents: a penalty of between 40% - 50% of the maximum ($2,640 - $3,300). (d) For breach of the Union Collective Agreements against the Employee Respondents: a penalty of between 10% - 30% of the maximum ($660 - $1,980).

Defaulting Employee Respondents 60 The only relevant point of distinction between the Employee Respondents and the Defaulting Employee Respondents is that, while the former admitted their contraventions of the BCII Act and WR Act, the latter did not. I am unaware as to whether the failure to appear reflects effective submission to decision of the Court or something else. 61 Accordingly, as a matter of parity, a penalty in the same amounts would be appropriate in the case of each of the category of Employee Respondents. This was the approach taken by McKerracher J in United Group Resources Pty Ltd v Calabro (No 7) (2012) 216 IR 333 at [66]. I respectfully agree with his Honour's approach. 62 Both the CFMEU Employee Respondents and the AMWU Employee Respondents submit that any costs ordered to be paid by them should be set-off against the penalties in some manner. No authority or principle is advanced in this regard. ABCC submits that the question of penalty and costs are distinct and should not be set-off. 63 I reject this submission. Costs are not awarded to punish an unsuccessful party. Rather, the primary purpose of an award of costs is to indemnify the successful party: Dr Bronte Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90 at [22]. An award of costs is not relevant to the exercise of the Court's discretion in imposing penalties.

Totality 64 As a final check on the appropriateness of the penalties to be imposed, the Court is required to consider whether the overall penalty is just and appropriate in the circumstances. 65 The Court must fix a penalty appropriate for each individual contravention and then as a check, at the end of the process, consider whether the aggregate is appropriate for the total contravening conduct: McDonald v The Queen (1994) 48 FCR 555 at 556. 66 The application of the totality principle is compulsory, not discretionary. A court must give effect to the principle where more than one contravention has been found: Johnson v R (2004) 205 ALR 346 at [35]. 67 Justice Tracey in Stuart-Mahoney observed at [60]: [60] … This principle is designed to ensure that the aggregate of penalties imputed is not such as to be oppressive or crushing…. 68 This translates, as the ABCC proposes, to a total penalty of $14,000 in the case of each Employee Respondent, other than in the cases of the 106th, 112th and 209th respondents where the penalty is $8,000. 69 The Employee Respondents submit that the amounts proposed are excessive in that they: (a) do not take due account of the rationale behind the principles relating to double punishment; (b) fail to pay proper regard to the totality principle and an outcome of fairness in light of an instinctive synthesis which takes due account of all relevant considerations; and (c) aggregate a penalty which is ultimately disproportionate to the nature of the contraventions that have been admitted or, in the case of the breaches of the Union Collective Agreements, found to have occurred. 70 The ABCC submits that the penalties proposed by it are comparable to the penalties imposed by the courts in Hadgkiss and Calabro (No 7), as the only directly comparable cases involving unlawful industrial action engaged in by a large group of respondents. 71 In relation to the Employee Respondents' suggestion of double punishment, the ABCC points out that the level of penalty proposed for breaches of the Union Collective Agreements is at a level of 10% - 30% of the maximum. This lower level of penalty takes account of the penalties sought to be imposed for contraventions of s 38 of the BCII Act and s 496 of the WR Act.

Set off of costs against penalty 72 Whilst the assessment of penalties is incapable of precision I regard the distinction identified by the ABCC, between those Employee Respondents who engaged in the Strike for 1-2 days as against those who engaged in the Strike for between 3-8 days, as rather arbitrary. I think it preferable to distinguish between the various Employee Respondents as to penalty by having regard to the actual number of days each Employee Respondent was engaged in the Strike. 73 The three categories of contravention have, at their core, that the Employee Respondents engaged in the Strike. However, the s 496 WR Act contraventions are in an important respect quite discrete because these contraventions concern the breach by the Employee Respondents of the AIRC Order. The breaches of the Union Collective Agreements, whilst serious in their own right are less so than the s 496 contraventions. Accordingly, I think there is a case for concurrency of the penalties, at least in part. 74 Whilst I have paid due regard to the fact that the ABCC is the regulator and to his submissions as to the appropriate penalties, nonetheless, I consider the following penalties ought apply in the case of those who engaged in the Strike for the entire eight days: (a) s 38 of the BCII Act 8,000 (b) s 496(1) of the WR Act 3,200 (c) breaches of relevant provisions of the Union Collective Agreements 1,600 12,800 75 Having regard to concurrency and totality I will, however, impose a total penalty of $10,000. 76 This amount will be reduced by 1/8th for each day that an individual Employee Respondent did not engage in the Strike. 77 As for the 106th, 112th and 209th Employee Respondents, I will impose the following penalties calculated on the basis of being engaged in the Strike for 8 days: (a) s 38 of the BCII Act 8,000 (b) breach of relevant provisions of the Union Collective Agreements 1,600 9,600 78 However, each of these Employee Respondents was engaged for only one day. This will likewise be reduced, for concurrency and totality, to $8,000. Accordingly, the penalty in the case of each of them will be $1,000. 79 I have attached as Schedule A the list of Employee Respondents and the penalty applicable in each case.

Should the penalties be suspended? 80 The Employee Respondents submit that all the circumstances warrant the imposition of pecuniary penalties, but an order that they be suspended, pending an absence of any conduct which contravenes any legislation which regulates industrial or employment standards. 81 The ABCC submits that no portion of the penalties in this case ought to be suspended. 82 The Employee Respondents submit that it is of critical importance, in evaluating the context in which the present proceedings arise, and in turn, the timing of the admissions made by the Employee Respondents, to understand that the proceeding's genesis lay in applications initially brought on behalf of the Employee Respondents' employer, CBI. In October 2008, interim injunctive relief was granted on CBI's application, restraining some 209 Employee Respondents from failing to attend work and/or failing to perform work in the manner as customarily performed by the employer: CBI Construction Pty Ltd v Abbott (2008) 177 IR 134. 83 In around mid-2009, the industrial dispute between the Employee Respondents and CBI was resolved. The proceedings in this Court between those parties were accordingly settled. The circumstances of the settlement are summarised in CBI Contractors Pty Ltd v Abbott [No 2] [2009] FCA 1129 at [7] (Abbott (No 2)), although I do not know the precise terms of the settlement. For the reasons expressed in that decision, the ABCC was given leave to cease to be an intervener and to be joined as an applicant. He has, since that time, had sole conduct of the proceedings. 84 The Employee Respondents do not cavil with the ruling in Abbott (No 2) or seek to re-argue any of the issues agitated on that interlocutory application. Rather, they submit that, relevant to the submissions made by the ABCC that there was no early admissions of liability as well as the ABCC's concession that there was some avoidance of costs to it from the time that liability was admitted, the following may be taken into account: (a) the resolution of the dispute and settlement of the proceedings achieved by the Employee Respondents, through their solicitors, with CBI, was compatible with certain relevant statutory purposes, specifically of: (i) the BCII Act, particularly the main object enacted in s 3(1), providing "an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole", and the further or supplementary object enacted in s 3(2)(a), "improving the bargaining framework so as to further encourage genuine bargaining at the workplace level"; and (ii) the WR Act, particularly s 3(d), "ensuring that, as far as possible, the primary responsibility for determining matters affecting the employment relationship rests with the employer and employees at the workplace or enterprise level" and 3(h), "supporting harmonious and productive workplace relations by providing flexible mechanisms for the voluntary settlement of disputes"). (a) the settlement referred to was facilitated in a relatively timely manner through communication between the solicitors for the parties to the primary industrial dispute without recourse to court-supervised or other formal mediation. (b) as a consequence of the joinder of the ABCC, the Employee Respondents were required to undertake another attempt to mediate the dispute, which did not take place until 21 September 2010. (c) following the unsuccessful mediation, a statement of claim was filed by the ABCC on 19 February 2010. (d) in the case of the Employee Respondents who were members of the CFMEU, it was necessary, I was informed by their counsel, to have contact with the individual employees, a total of 31 to whom the nature of the proceedings needed to be explained and in particular, the significance and effect of making admissions of liability. The process apparently required each of the relevant individual Employee Respondents to provide written instructions admitting liability. This process was not able to be completed until shortly before the respondents filed an amended defence on 4 March 2011, admitting liability on behalf of all of the CFMEU Employee Respondents. (e) in the case of the 62 Employee Respondents who were members of the AMWU, admissions of contraventions of s 494 and 496(1) of the WR Act were made in the defence filed on those respondents' behalf on 2 August 2010 by Gibson & Gibson. Admissions were made of the contraventions of s 38 of the BCII Act on behalf of the AMWU Employee Respondents in an amended defence filed on 3 March 2011. In the supervening period between the admissions being made of those respective causes of action, negotiations were ongoing, reflective of the character of the proceedings as seeking the imposition of civil penalties, attended by the statutory framework that governs this Court's exercise of Federal jurisdiction. (f) in the circumstances of this background and context, little or no weight should be placed on the what the ABCC characterises as the delay in admissions being made by the Employee Respondents. The preferable conclusion is that the admissions that were made by the solicitors acting for the Employee Respondents occurred within as reasonable a time as was practicable, given the nature and size of the proceedings and the number of individual Employee Respondents from whom instructions were required. (g) the admissions of liability (on all causes of action save for those concerning breaches of the Union Collective Agreements), made as soon as reasonably practicable, constitute a factor which ought to weigh in favour of the Employee Respondents. Contrary to the submissions of the ABCC, the timing of the admissions of liability does illustrate cooperation, corrective conduct or contrition on the part of the Employee Respondents. (h) Liability found by the Court for all respondents under s 719 of the WR Act turned on a characterisation of the text and context of relevant provisions of the Union Collective Agreements against a background of uncontentious facts: the Decision at [244]-[256]. The hearing of these discrete causes of action under s 719 required limited interlocutory preparation and took limited time at trial. 85 There was no evidence before me as to these assertions. I do not think, in any event, that it was reasonable for more than one year to pass by before relevant instructions were obtained. 86 As to suspension, the Employee Respondents submit that the Court ought take into account the following factors: (a) The relevant conduct of the Employee Respondents occurred between 14 October 2008 and 22 October 2008. As found in Abbott (No 2), the industrial dispute sourcing that conduct was resolved between the parties to the relevant employment relationships and the associated civil litigation settled. (b) The failure to attribute very considerable weight to the resolution of a large and extensive industrial dispute, when proceedings are subsequently taken over by an industrial regulator would operate as a disincentive to the resolution of subsequent disputes at the workplace level. It would likewise undermine achievement of the legislative objects of the BCII Act and the WR Act (now analogously provided for in the FW Act). (c) The project with respect to which the relevant conduct occurred has been completed and the individual employees have either moved on to other employment, or their present activities are undetermined. That does not mean that the function of specific deterrence is left without meaningful operation. The peril of a suspended penalty becoming activated by reason of further contravening conduct is a matter of no small moment, particularly given, as the Court can readily infer, the mobility and flexibility of work available on projects of the nature of the Phase V Expansion Project on the Burrup Peninsula. (d) Apart from a small number of Employee Respondents, and in respect of whom it is not contended by the ABCC that there should be any higher penalty in this case, there have not been repeated acts of unlawful conduct on the part of the Employee Respondents. (e) The Employee Respondents will need to personally pay any penalty imposed. In this respect the case is different to Hadgkiss where there was material before the Court indicating that individual employees would not have to pay any pecuniary penalty: see at [105]-[106]. Whilst in those circumstances the Court did not consider the payment of the penalties by a third party as a relevant matter (see at [107]), it is a relevant matter that the penalties will in fact be paid personally by the Employee Respondents. The imposition of a civil penalty on an individual employee is a significant act on the part of the Court which should be cautiously exercised, particularly in the circumstances as set out in (a) and (b) above. (f) The duration and other terms of a suspension of a pecuniary penalty can be tailored by the Court to achieve a just outcome in all of circumstances. 87 The Employee Respondents placed considerable reliance upon the judgment of McKerracher J in Calabro (No 7). In Calabro (No 7), fully suspended penalties were imposed on the respondents. 88 Although the legislative provisions that were contravened in that case were similar, the factors taken into account by his Honour were, in important respects, significantly different from those relevant here. 89 In Calabro (No 7), the applicants and respondents reached agreement (the ABCC was the intervener) as to the terms of a seven year injunction which was ultimately imposed by the Court. The imposition of such a lengthy injunction, it seems, was determinative in the decision to impose fully suspended penalties. As to this, his Honour said, at [71]: [71] It is significant in my view that the effect of an injunction is to deter the respondents from engaging in contraventions in the future by attaching to any such contraventions the range of sanctions available for breach of a court order. As noted, many of the respondents continue to undertake construction and commissioning work on the Pluto Project and are likely to continue to do so…. 90 His Honour went on to say, at [74]: [74] … In my view, having regard to all of the factors indicated above and, particularly, the length and breadth of the terms of the injunction, the suspension of penalties agreed between the applicants and the represented respondents but opposed by the ABCC taken together with the injunctive orders represents an appropriate disposition of the matter in accordance with the sentencing principles that I have discussed. (Emphasis added.) 91 Here, an injunction was ordered by consent on 30 October 2009 restraining, relevantly, the Employee Respondents, whilst employed by CBI on the Project, from failing to attend work and/or failing to perform work in the manner as customarily performed for CBI. However, no lengthy injunction (with the added consequence of contempt for breach) was imposed to restrain future unlawful conduct. The Project the subject of the contraventions is completed. 92 The principal factor that was relied upon by the Court in Calabro (No 7) in deciding to fully suspended penalties is not present to the same degree, in this proceeding. 93 In Calabro (No 7), unlike this case, there was no breach of an AIRC order. This I regard as an important distinction. The breach of the AIRC order in this case was by all the Employee Respondents and should be regarded, in my view, with extreme seriousness. Moreover, some, although not all of those restrained by the injunction in this case, later involved themselves in similar unlawful conduct in the Calabro (No 7) case. 94 Consideration of the main object of the BCII Act is a relevant consideration to the construction and application of the BCII Act: United Group Infrastructure Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2005) 148 IR 399 at [25]. 95 The main object of the BCII Act is found in s 3 as follows: (1) The main object of this Act is to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole. (2) This Act aims to achieve its main object by the following means: (a) improving the bargaining framework so as to further encourage genuine bargaining at the workplace level; (b) promoting respect for the rule of law; (c) ensuring respect for the rights of building industry participants; (d) ensuring that building industry participants are accountable for their unlawful conduct; (e) providing effective means for investigation and enforcement of relevant laws; (f) improving occupational health and safety in building work; (g) encouraging the pursuit of high levels of employment in the building industry; (h) providing assistance and advice to building industry participants in connection with their rights and obligations under relevant industrial laws. 96 The Employee Respondents' reliance on s 3(2)(a) is somewhat misconceived. The suspension of penalties does not reflect that aim. What is centrally relevant in a case such as this are the provisions of s 3(2)(b)-(e). The achievement of the main object by these means would not be advanced, in this case, by an order fully suspending penalties. It would significantly diminish the aspects of general and specific deterrence. 97 Nothing found in the WR Act at s 3(d) and s 3(h) affects this conclusion. Indeed the "flexible mechanisms for the voluntary settlement of disputes" were blatantly disregarded by the Employee Respondents. 98 I will not order suspension of any of the penalties in relation to those Employee Respondents who were found to have engaged in similar contravening conduct in the Calabro (No 5) case. I am, however, prepared to order suspension as to part of the penalty in the case of those Employee Respondents who have not engaged in such contravening conduct again and who abided by the Court injunction. I will suspend those penalties, in each case, for a period of three years, to the extent of 50% of the penalty imposed.

Costs 99 In this case, there are four sets of costs which require consideration. They are as between the ABCC and the: (a) 218th respondent and 219th respondent (the CFMEU and Upton); (b) CFMEU Employee Respondents; (c) AMWU Employee Respondents; and (d) Defaulting Employee Respondents. 100 Section 43(1) of the Federal Court Act 1976 (Cth) (the FCA Act), provides that subject to subs (1A) and s 570 of the FW Act, the Court or a judge has jurisdiction to award costs in all proceedings before the Court, other than proceedings in respect of which this or any other Act provides that costs shall not be awarded. Section 570 of the FW Act, as referred to in s 43(1) of the FCA Act, does not apply to these proceedings.

The BCII Act 101 The proceedings were within the Court's original jurisdiction in relation to a determination arising under s 38 of BCII Act that was conferred generally by s 75(1) of the BCII Act; and exclusively by s 75(7) of the BCII Act in respect of acts or omissions for which an organisation or member of organisation is to be proceeded against for a pecuniary penalty. 102 There is no provision in the BCII Act that precludes costs being awarded to a successful party, and as such, pursuant to s 43(1) of the FCA Act, the Court has a discretion to award costs in relation to costs of the proceedings brought under s 38 of the BCII Act.

The WR Act 103 Section 824 of the WR Act restricted awards of costs by providing that a party to a proceeding in a matter arising under the WR Act must not be ordered to pay costs incurred by any other party to the proceedings unless the first mentioned party instituted the proceeding vexatiously or without reasonable cause. 104 It is not suggested that the ABCC entered the proceedings under the WR Act vexatiously or without reasonable cause, hence there is no jurisdiction to award costs against the ABCC in relation to determinations arising under the WR Act. 105 Where a matter arises under two Federal Acts, in this case the BCII Act and the WR Act, s 824 of the WR Act does not apply to the entirety of the proceeding to limit the power of the Court to make a costs order: Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (No 2) (2013) 209 FCR 464 at [64] (CFMEU (No 2)). 106 The Court's jurisdiction to award costs in relation to the BCII Act determination is unimpeded by the statutory limits on costs in s 824 of the WR Act. 107 The ABCC's case as pressed relied upon two statutory provisions, namely the BCII Act and WR Act, although upon 3 distinct breaches: s 38 BCII Act; s 496(1) of the WR Act and breaches of the Union Collective Agreements which are applicable provisions under s 717 for the purposes of s 719(1) of the WR Act. 108 The ABCC is entitled to a costs order in its favour as against the Employee Respondents, including the CFMEU Employee Respondents, the AMWU Employee Respondents and the Defaulting Employee Respondents. The CFMEU and Upton are entitled to a costs order in their favour as against the ABCC. 109 The question in each of these cases is as to the particular costs order which should be made.

The CFMEU and Upton 110 In the Decision at [266], findings of liability were made of: (a) unlawful industrial action in contravention of s 38 of the BCII Act by Upton and the CFMEU: 266-(b); (b) organising or engaging in industrial action before a collective agreement has expired in contravention of s 494(1) of the WR Act by Upton and the CFMEU: 266-(e); (c) breach of the Union Collective Agreement by failing to comply with the issue resolution: 266. 111 On appeal in CFMEU (No 1), the Full Court allowed the appellant's appeal; set aside the declarations of liability and dismissed the ABCC's claims against the CFMEU and Upton. 112 In CFMEU (No 2), the Full Court reviewed extensively the cases dealing with costs orders where more than one statutory bases of jurisdiction. The Full Court concluded that the ABCC should pay 50% of the appellants' costs of the appeal, and the costs of this proceeding were remitted to myself as the primary judge for resolution. 113 The CFMEU and Upton submit that the ordinary rule that costs follow the event should be applied. 114 They seek orders that the ABCC pay their costs of the proceedings relating to the determinations under s 38 of the BCII Act, including reserved costs and that there be no order as to their costs of the proceedings relating to the determinations arising under ss 494, 496 and 719 of the WR Act.

CFMEU Employee Respondents 115 The CFMEU Employee Respondents submit that they made admissions of liability at the earliest practicable time. I have, for reasons I explained earlier, not accepted this submission. 116 They further submit that they did not participate in the trial, lead evidence, or cause any or any significant additional work to be undertaken by the ABCC in relation to the proof of liability against them and that any relevant costs order, save with respect to a portion of the costs which relate to the getting up for the hearing and the hearing itself, should be limited to the date of their admissions on 4 March 2011, at the time that they filed an amended defence. 117 They then submit that the award of any costs against them should be restricted to 30% of the ABCC's costs as agreed or taxed, on the basis that although there were two separate and distinct statutory provisions relied upon, two of the breaches related to breaches of the WR Act (to which s 824 WR Act applies) and only one of the breaches related to a breach of the BCII Act. This, whilst having superficial attraction, says nothing about the time engaged in preparation relating to each cause of action. Indeed, it would be almost impossible to disentangle the three in that way.

AMWU Employee Respondents 118 The AMWU Employee Respondents are those represented by Gibson & Gibson. The proceedings against the AMWU and Johnson in his capacity as delegate were dismissed by consent on 23 July 2013. Contravention orders made against them were also, by consent, set aside. No costs orders are sought in relation to the proceedings against the 220th respondent, the AMWU, or the 106th respondent, Johnson, although it includes Johnson in his capacity as an Employee Respondent. 119 The AMWU Employee Respondents submit that any costs order will necessarily be confined to the proceedings insofar as they concerned the cause of action under the now repealed s 38 of the BCII Act, for which admissions were entered on behalf of the AMWU Employee Respondents on 3 March 2011. 120 Any costs against the AMWU Employee Respondents ceased to accrue from the entry of the relevant admissions by the AMWU Employee Respondents on 3 March 2011. 121 I accept the submission put by the ABCC that whatever position the Court adopts in respect of costs in this matter, it should be consistent as between the several parties. 122 The ABCC also submit that I should order costs in a way consistent with the reasons and decision of the Full Court in CFMEU (No 2). As I have mentioned, the relevant respondents have made three different submissions in their respective submissions: (a) The CFMEU and Upton say that only an order in respect of s 38 of the BCII Act should be made. (b) The CFMEU Employee Respondents say an order should be made that the CFMEU Employee Respondents pay 30% of the ABCC's costs. (c) The AMWU Employee Respondents say that a normal costs order should be made but confined to the s 38 BCII Act proceedings. 123 The ABCC submits that the principle reason that the Full Court's lead in CFMEU (No 2) as to costs should be adopted is that there is nothing about the trial that can be distinguished from the appeal that was the subject of the Full Court's costs order. I am persuaded that this is the appropriate way to deal with the issue of costs so far as concerns the Employee Respondents. The reason that the Full Court, it seems, remitted the question of costs to this Court was because it considered at [73] that "there may be matters going to the exercise of that discretion which [the] Full Court is not aware". As it happens there are no such matters. 124 The following observations of the Full Court in CFMEU (No 2) bear setting out in full: [66] It is preferable in the present case to face directly the consequence that there are two Acts under which the matter in the proceeding arises and the facts consist of a common substratum or undifferentiated whole, but with different legislative sources of claimed liability. It follows in our opinion that the uncontrolled aspect should be treated as constituting one half of the proceeding. . . . [71] We prefer, as applicable to the circumstances of the present case, the approach of Jessup J in Bahonko, upheld by the Full Court on appeal, that the issues which occupied the parties were either wholly undifferentiated as between the two statutory bases of jurisdiction, or about equally referable to each and that, in all the circumstances, justice would be done, and the true costs of the respondents with respect to the non-WR Act claims would be reflected, fairly albeit approximately, if the respondents in Bahonko were awarded half their costs incurred subsequent to the consolidation of the proceedings. (Original emphasis.) 125 "Bahonko" is a reference to the judgment of Jessup J in Bahonko v Sterjov (2007) 163 FCR 318. 126 I respectfully agree with and adopt the conclusions of the Full Court on this question and their reasons for these. 127 Accordingly, I will order that the Employee Respondents pay 50% of the ABCC's costs, to be taxed if not agreed, up until the following dates: (a) 3 March 2011 in relation to the Employee Respondents represented by Gibson & Gibson, and also the costs of and incidental to the hearing on 23 July 2013 (the Hearing), including the preparation of submissions on penalty and costs; and (b) 4 March 2011 in relation to the Employee Respondents represented by Fiocco's Lawyers and the Defaulting Respondents (as defined in the order dated 24 March 2011), and also the costs of and incidental to the Hearing including the preparation of submissions on penalty and costs 128 Likewise, the ABCC should pay 50% of the costs of the CFMEU (218th respondent) and Upton (219th respondent), to be taxed if not agreed. I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

EMPLOYEE RESPONDENTS Respondent number First name Surname Total days absent without authorisation Total Penalty ($) 1 Benjamin ABBOTT 7 8,750 3 Murray ARCARO 8 10,000 4 Moses ASIATA 8 10,000 6 Sergio BAEZ 8 10,000 9 Francisco BARRAZA 8 10,000 12 Rolando BAZAEZ 8 10,000 13 Leon BECKER 8 10,000 16 Patrick BIRD 8 10,000 17 Terrance BISHOP 8 10,000 19 Romeo BONCATO 8 10,000 20 Darren BOXALL 7 8,750 25 Robert BROWN 8 10,000 28 Slavo CEKLIC 8 10,000 29 Kim CHENNELL 8 10,000 31 Jason CHROMIAK 8 10,000 32 Robert CLARK 8 10,000 34 David COLLINS 8 10,000 35 Donald COLYER 8 10,000 37 Chris CORRIGAN 8 10,000 38 Allan COUTTS 8 10,000 39 Lance CRONIN 8 10,000 40 Andrew CROSIER 4 5,000 41 Renee CUMBERS 8 10,000 42 Kenneth CUMMING 6 7,500 43 Alastair CUNLIFFE 8 10,000 45 Aiden DAVEY 8 10,000 49 Scott DEVINE 8 10,000 50 Claude DEVOS 8 10,000 51 John DICKSON 8 10,000 53 Norman DODGIN 8 10,000 55 Daniel DOYLE 8 10,000 56 Matt DRUMMOND 8 10,000 59 Johannes DUPLESSIS 8 10,000 64 Warwick FAULKNER 8 10,000 65 Victor FAUSTINO 8 10,000 67 Jose FERREIRA 8 10,000 71 George FITZROY 8 10,000 72 David FRASER 8 10,000 73 Salvatore FRONTE 8 10,000 78 Louie GEROVICH 6 7,500 82 Simon GILBERT 8 10,000 83 Tay GOODALL 8 10,000 88 Duane GUYATT 7 8,750 90 John HARVEY 8 10,000 91 Quinton HEBBARD 8 10,000 94 Robert HOLT 8 10,000 95 Stephen HONICKE 6 7,500 96 Andrew HORNBY 8 10,000 97 Christopher HOWARD 5 6,250 98 Vincent HOWES 7 8,750 103 Nikola IVKOVIC 8 10,000 104 Denis JACKSON 8 10,000 106 Mark JOHNSON 1 1,000 107 Richard JONES 3 3,750 108 Raymond JONES 8 10,000 110 Turipi KARUTJINDO 8 10,000 111 Emin KECAP 6 7,500 112 Shaun KEILY 1 1,000 113 Lenko KORLJAN 8 10,000 115 Darrin LANE 8 10,000 116 Shane LAVELLE 7 8,750 117 Christine LEAHY 8 10,000 118 Charlie LINESS 8 10,000 119 Clifford LOGAN 8 10,000 120 Kenneth LOGAN 8 10,000 123 Donald MACKAY 8 10,000 124 James MANN 8 10,000 126 Denis MARRINER 8 10,000 127 Gheorghe MATEIU 8 10,000 130 Gregory MCCARTHY 8 10,000 131 Paul MCGEADY 8 10,000 132 Russell MCGHIE 8 10,000 133 Joseph MCGRANE 7 8,750 134 Alastair MCGUIRE 8 10,000 135 Alan MCKENZIE 3 3,750 137 Dean MEDLAND 8 10,000 138 Brad MILLER 5 6,250 140 Robert MITCHELL 8 10,000 141 Pasko MITRESKI 8 10,000 143 Christopher MOORE 4 5,000 144 Leonard MUDRI 7 8,750 146 Darren NEWBY 3 3,750 147 Jamie NICOLAOU 8 10,000 148 James ODIAM 7 8,750 151 Brian OTTAWAY 8 10,000 152 Mandy-Lee PALMER 7 8,750 155 Ken PAYNE 6 7,500 158 Louise PFITZNER 8 10,000 159 Richard PHILLIPS 8 10,000 160 Sheree PIKE 8 10,000 162 Joe PIZZO 7 8,750 163 John PRATT 7 8,750 170 David ROSSITER-MCLAREN 8 10,000 171 Phillip ROWELL 8 10,000 173 Tom SABINE 8 10,000 175 Michael SANDERS 8 10,000 177 Anton SAXER 8 10,000 181 Keith SHIELD 8 10,000 182 Dale SHIRTLIFF 8 10,000 185 Dusko SOBOT 8 10,000 187 Graeme SOWDEN 8 10,000 188 Brad SPARK 7 8,750 192 Justin STUURSTRAAT 8 10,000 193 Wayne SUTHERLAND 8 10,000 194 Allan TAMAPUA 4 5,000 195 Ken THACH 8 10,000 196 Michael TICEHURST 8 10,000 197 Neil TOLLISON 8 10,000 198 Bryan TONKIN 8 10,000 200 John TUIVASA 8 10,000 201 Greg UCHWAL 7 8,750 202 Peter VARIAKOJIS 7 8,750 203 Maree WAINMAN 7 8,750 204 Mitchell WEIR 8 10,000 206 Michael WRIGHT 6 7,500 208 Lesley YOUNG 8 10,000 209 Pero ZUVELA 1 1,000

Schedule B EMPLOYEE RESPONDENTS SUBJECT TO 50% SUSPENSION OF PENALTIES Respondent number First name Surname 4 Moses ASIATA 9 Francisco BARRAZA 13 Leon BECKER 16 Patrick BIRD 17 Terrance BISHOP 19 Romeo BONCATO 25 Robert BROWN 28 Slavo CEKLIC 29 Kim CHENNELL 31 Jason CHROMIAK 32 Robert CLARK 34 David COLLINS 35 Donald COLYER 37 Chris CORRIGAN 38 Allan COUTTS 39 Lance CRONIN 40 Andrew CROSIER 41 Renee CUMBERS 43 Alastair CUNLIFFE 45 Aiden DAVEY 51 John DICKSON 53 Norman DODGIN 55 Daniel DOYLE 56 Matt DRUMMOND 64 Warwick FAULKNER 71 George FITZROY 78 Louie GEROVICH 82 Simon GILBERT 90 John HARVEY 91 Quinton HEBBARD 95 Stephen HONICKE 96 Andrew HORNBY 97 Christopher HOWARD 103 Nikola IVKOVIC 104 Denis JACKSON 106 Mark JOHNSON 108 Raymond JONES 110 Turipi KARUTJINDO 111 Emin KECAP 113 Lenko KORLJAN 116 Shane LAVELLE 117 Christine LEAHY 118 Charlie LINESS 119 Clifford LOGAN 120 Kenneth LOGAN 126 Denis MARRINER 127 Gheorghe MATEIU 130 Gregory MCCARTHY 131 Paul MCGEADY 132 Russell MCGHIE 133 Joseph MCGRANE 135 Alan MCKENZIE 138 Brad MILLER 141 Pasko MITRESKI 143 Christopher MOORE 144 Leonard MUDRI 146 Darren NEWBY 147 Jamie NICOLAOU 148 James ODIAM 151 Brian OTTAWAY 152 Mandy-Lee PALMER 155 Ken PAYNE 158 Louise PFITZNER 159 Richard PHILLIPS 160 Sheree PIKE 162 Joe PIZZO 163 John PRATT 170 David ROSSITER-MCLAREN 171 Phillip ROWELL 177 Anton SAXER 181 Keith SHIELD 182 Dale SHIRTLIFF 185 Dusko SOBOT 187 Graeme SOWDEN 188 Brad SPARK 192 Justin STUURSTRAAT 195 Ken THACH 198 Bryan TONKIN 200 John TUIVASA 201 Greg UCHWAL 202 Peter VARIAKOJIS 203 Maree WAINMAN 206 Michael WRIGHT 208 Lesley YOUNG 209 Pero ZUVELA