CONSIDERATION
60 Obviously, each respondent has a different degree of culpability.
61 Cartledge entered the Project on one occasion in the afternoon of 20 March 2014. There he intentionally hindered and obstructed Knowles, Hansen Yuncken's Senior Site Manager, and Nuzzo, Hansen Yuncken's Site Manager by deliberately entering the Project, knowing that he was obliged to give 24 hours prior notice, and in the face of being told at the proposed entry by Knowles and Nuzzo not to enter the Project. He then refused to leave the Project after being required by Knowles on two separate occasions to do so. As recorded, he did not provide an entry notice as required by s 487 of the FW Act, and so did not comply with his obligations under Part 3-4 of the FW Act.
62 Cartledge, as the Secretary of the CFMEU's Construction and General Division, South Australian Divisional Branch, is the most senior CFMEU officer in South Australia. He was aware that what he was doing did not comply with the law. It is agreed that he said, knowing the legal position: "we are going to do what we want to do". He was, in the afternoon of 20 March 2014, taking a front position in relation to others in their contraventions.
63 I take into account that Cartledge has worked for the CFMEU for some 15 years, and he has not previously contravened s 500 of the FW Act, or any relevant industrial legislation. Like the other respondents, I give him credit for the admissions of the facts and the contraventions as recorded as indicative of a willingness to facilitate the course of justice. Clearly, those admissions do not attract as much credit as might have been the case. They were made only after the Director and then the respondents had filed a significant volume of affidavit material. In the respondents' material was an attempt to criticise Nuzzo. The Director's preparation extended to putting on all of the evidence, issuing subpoenas, commencing the preparation of liability submissions and preparing the court book. That obviously incurred considerable expense. However, there were doubtless discussions between the parties before the Statement of Agreed Facts and Admissions was arrived at. There has also been a considerable saving of the time and expense of a trial, both for the parties and for the Court.
64 It is, in my view, significant that neither Cartledge nor any other respondent has expressed any contrition, or taken any formal corrective conduct, in relation to conduct of the type constituting their contraventions. Counsel for the respondents acknowledged that the contravening conduct was undertaken by the conscious decision of each of them, knowing that there was a "flagrant" breach of the law. The explanation offered for that conduct is simply that there was a genuine interest in protecting the full-time Mitcon employees. That does not explain why there was any need to breach the provisions referred to, particularly on 20 March 2014 after the CFMEU had been formally notified of the need to give notice.
65 I have also taken into account that no quantifiable economic loss or damage was suffered by Hansen Yuncken by any of the contraventions. It is true that both Knowles and Nuzzo were required to monitor, and deal with, the individual respondents but that would largely have applied if the entry on each day was on notice.
66 I have also taken into account that, whilst the contraventions were deliberate, they did not occur as part of a pre-meditated industrial strategy by the CFMEU, on some orchestrated, concerted or deliberate campaign. As I have noted, they occurred in the context of a genuine concern about Mitcon not employing full-time employees at the expense of casual employees, but that context does not provide any real explanation for the deliberate contraventions. I do not accept that the contraventions were "clumsy", but I accept they were not directed towards any ulterior or improper outcomes beyond demonstrating the ability to ignore the entry requirements prescribed.
67 Those comments apply to Cartledge and to each of the respondents. I shall not repeat them in detail in relation to each of the respondents. I revert to their individual conduct and circumstances.
68 O'Connor's conduct involves two contraventions on 19 and 20 March 2014, the latter involving conduct on separate occasions on that day.
69 The first O'Connor contravention on 19 March 2014 is described in terms of acting in an improper manner, whereas the contraventions of the individual respondents on 20 March 2014 are described as intentionally hindering or obstructing Knowles and/or Nuzzo. The maximum number of penalty units for a contravention of s 500 does not differ according to which particular part of s 500 has been contravened. However, clearly the course of conduct on 20 March 2014 was more confronting and more sustained. That difference has been taken into account in determining the appropriate penalties, both in O'Connor's case and in Pitt's case.
70 The detail of those contraventions is recorded above. I will not repeat it. As in the case of Cartledge, it was engaged in knowing that it was wrong, and on 20 March 2014 after he had been specifically reminded of the requirement to give notice of entry, and after entry had been specifically refused by Knowles.
71 It is necessary to comment further on the confrontation with Nuzzo on the afternoon of 20 March 2014. Nuzzo was entitled to, and did, try to prevent Pitt from entering the Project. Pitt nevertheless tried to push past Nuzzo to enter the site, and O'Connor physically tried to pull Nuzzo away from the gate so Pitt could enter. Both Pitt and O'Connor were prepared to use force to gain entry, when they knew they were not entitled to do so. It may be that, as counsel for Pitt and O'Connor said, the confrontation occurred in the heat of the moment. I accept that the forced entry, enabled when Knowles took the heat out of the confrontation when he told Nuzzo to step away from the gate, occurred without premeditation. It occurred because Nuzzo attempted to do what he was entitled to do: to prevent the proposed entry. It demonstrates a firm disregard for the entry provisions imposed by the legislation, and in the absence of explanation, that level of disregard is a quite significant one. The physical exchange was brief, and in the event inconsequential, but that appears to have been because of Knowles' instruction to Nuzzo.
72 I do not accept the submission on behalf of Pitt and O'Connor, and the CFMEU, that Nuzzo's actions "were somewhat contributory to the altercation". The situation was created by the deliberate decision of Pitt and O'Connor (and Cartledge and Bolton) that afternoon to pursue entry to the site in breach of the entry requirements, and then the altercation occurred because Pitt and O'Connor were prepared to further that decision by forcefully trying to prevent Nuzzo from trying to stop them from having such access.
73 I take into account that O'Connor, like all the individual respondents other than Pitt, has not previously contravened s 500 of the FW Act or any relevant industrial legislation. The other matters referred to above in relation to Cartledge apply also to O'Connor, save that Cartledge is of course the senior to O'Connor. On the other hand, O'Connor has acknowledged two contraventions and the second has the exacerbating of his role in the altercation on 20 March 2014. It is easy to conceive of far graver forceful conduct than that which took place, as counsel submitted; but that does not mean that the deliberate contravention accompanied by force to achieve it is not a serious one.
74 It is also appropriate to bear in mind, when fixing the total penalty imposed on both O'Connor and Pitt, that their contraventions occurred over two consecutive days and were not prolonged or drawn out. In a general sense can be described as reflecting a course of conduct, proximate in time and related to the same objective of getting entry in breach of the law but for an identifiable and understandable industrial purpose.
75 Pitt also has admitted two contraventions, on 19 and 20 March 2014, as noted earlier in these reasons.
76 As in the case of Cartledge, his contraventions are of particular concern because he is the national organiser of the CFMEU's Construction and General Division, and so he is a senior officer of the CFMEU.
77 His contraventions also were deliberate, and indicate an intention not to comply with the applicable entry provisions. His contravention on 20 March 2014 includes a refusal to produce an entry permit when requested on the morning of that date, a refusal to leave the Project when requested on the morning of that date, and his conduct on the afternoon of that date including his role in the altercation with Nuzzo discussed above when considering O'Connor's position. He initiated that altercation by telling Nuzzo, who was attempting to block his entrance, to "get out of the way" as the "others are going in" (after Cartledge had wrongfully entered the Project), by the threat that Nuzzo was making a big mistake and that there would be trouble, by attempting to force entry until Nuzzo stepped aside, and then by telling Nuzzo his lawful attempt to block his entry had "just made things a hell of a lot harder" for Nuzzo. He then again refused to leave the Project when requested to do so by Knowles.
78 That behaviour demonstrates that he not only did not care that he was breaking the entry rules, but that he was so indifferent to complying with them as to force entry and to make the threats to Nuzzo set out above.
79 In Pitt's case, he has previously been found to have contravened industrial legislation: Director of the Fair Work Building Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCA 515, namely engaging in coercive conduct contrary to s 43 of the Building and Construction Industry Improvement Act 2005 (Cth). He cannot therefore get the credit which is given to the other individual respondents for having no relevant prior contraventions of such legislation.
80 In other respects, my comments in relation to Cartledge concerning the factors applicable to the determination of the appropriate penalty for each of Pitt's contraventions apply.
81 Bolton's contravention occurred on 20 March 2014 in the circumstances referred to above. He was not involved in the attempted forceful entry and the related altercation on that afternoon.
82 However, I accept that one matter relevant to the appropriate penalty in his case is his assertion that he (or they) were proposing to enter the site in relation to a safety matter. If that were correct, no notice of entry is required. It was accepted on his behalf that there was no safety matter of concern to him at the time. For obvious reasons, the particular right of entry without notice in the case of a safety concern is not one which should be misused.
83 In other respects, to the extent that they are applicable to Bolton, my observations about matters concerning Cartledge apply also to Bolton. I note he was not a senior officer of the CFMEU. I note that he has no prior instances of a contravention of relevant industrial legislation. Like the other individual respondents, there is no expression of contrition.
84 Stephenson's contravention occurred only on the morning of 20 March 2014. He entered the Project without giving proper notice of entry. Unlike the others, although he refused to leave the Project when requested to do so by Knowles, he did show his permit to Knowles shortly after entering the Project. I infer from that that, unlike the others, he was less assertive about the determination to secure entry without complying with the relevant provisions of the FW Act.
85 He has no relevant recorded contravention of industrial legislation. Apart from the absence of any contrition, each of the factors which might go to reducing the applicable penalty apply to him. He was not a senior officer of the CFMEU. He no longer works for the CFMEU, so the element of personal deterrence in my view is also a little less significant in his case.
86 I accept the Director's contention that his conduct was the least serious by a considerable margin, and the applicable penalty should be towards the lower end of the scale.
87 The CFMEU is in a different position. It has acknowledged the seven contraventions reflected in the conduct of its officers. The details are set out above. Two of those officers are senior officers: Pitt and Cartledge.
88 It is a large, prominent and influential national union. There is no evidence of any incapacity to pay a significant penalty.
89 Moreover, the CFMEU has a significant record of non-compliance with the provisions of industrial legislation. The table attached to the written submission of the Director lists 105 previous reported decisions involving such contraventions by the CFMEU. In a general sense, they are of relevance to the overall conclusion as to appropriate penalties because they may inform the assessment of the personal deterrence appropriate in respect of these contraventions.
90 However, it is important to bear in mind the correct principles with regard to considering previous conduct relevant to penalty. Barker J in CFMEU (No 2) at [47]-[49], recently explained them:
(1) similar prior relevant conduct may be taken into account in assessing penalty, but it cannot be given such weight as to lead to the imposition of a penalty that is disproportionate to the gravity of the current contravention: Veen v The Queen (No 2) (1988) 164 CLR 465 (Veen) at [477];
(2) similar previous conduct may demonstrate that a respondent has a history of engaging in the particular conduct in question, that the penalties previously imposed were insufficient to deter the respondent from re-engaging in that conduct and that the respondent has failed to take adequate steps to prevent further contraventions: Veen at 477; Stuart-Mahoney v CFMEU [2008] FCA 1426 (Mahoney) at [44]; Temple v Powell (2008) 173 IR 189 (Temple) at [63]-[64];
(3) a respondent is not to be punished again for prior conduct - prior conduct may diminish leniency by reason of its character, having an upward effect on penalty, albeit within the proper limits indicated by the circumstances of the immediately contravening conduct: The Queen v McInerney (1986) 42 SASR 111 (McInerney) at 113;
(4) the effect of prior contravening conduct is more cogent if it has been the subject of conviction; if not, the prior conduct is still relevant but perhaps of less weight: McInerney at 113; Williams v CFMEU (No 2) [2009] FCA 548 (Williams (No 2)) at [26]-[28];
(5) past conduct cannot operate so as to increase the penalty beyond that which would be appropriate to the conduct in question: Temple at [63];
(6) contraventions within a different branch of the union are relevant, but are to be given less weight than contraventions within the branch in question: Draffin v CFMEU (2009) 189 IR 145 (Draffin) at [72];
(7) although similar conduct which has been found to contravene other legislative provisions may have potential relevance, conduct which is of a different character does not assist the penalty assessment: Mahoney at [44].
See also the observations of White J in Director v CFMEU at [47]-[58].
91 It is therefore important only to weigh in the scales when determining penalty in an appropriate way the prior contraventions of the CFMEU. I do not need to add to the debate referred to by White J in that case at [57]-[58]. In this matter the Director and the respondents accepted that regard should be had to all the relevant CFMEU contraventions, but that less regard should be had to them where the South Australian Branch was not the location of the contraventions. I have proceeded on that basis, perhaps pragmatically put forward. That accords with the approach adopted by Gyles J in A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466 at [13]. So far as I can see, only two of the many CFMEU previous contraventions took place in South Australia.
92 I have remarked upon the fact that each of the individual respondents' conduct indicates that each (with the exception of Stephenson) simply did not care about complying with the entry provisions. In the case of Pitt and Cartledge, as senior officers of the CFMEU and therefore as demonstrating to the other organisers the attitude of the CFMEU to such requirements, that conduct is egregious.
93 I consider that the CFMEU's record of contraventions also demonstrates that a particularly persuasive form of personal deterrence against similar conduct in the future is appropriate: cf Temple at [64]; Mahoney at [44].