Fair Work Ombudsman v Albert

[2023] FCA 220

Federal Court of Australia|2023-03-16|Before: Collier J

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Court

Federal Court of Australia

Decision date

2023-03-16

Before

Collier J

Source

Original judgment source is linked above.

Judgment (20 paragraphs)

[1]

INTRODUCTION 1 By originating application filed on 21 October 2019 the Australian Building and Construction Commissioner (now the Fair Work Ombudsman) sought relief against the respondents pursuant to ss 545 and 546 of the Fair Work Act 2009 (Cth) (Fair Work Act). That relief constituted of extensive declarations against the respondents referable to conduct on 23 and 24 July 2018 on a project site along the Bruce Highway north of Brisbane. The applicant also sought the imposition of penalties against the respondents. 2 On 19 April 2022 liability in this matter was resolved between the parties. The agreement of the parties was reflected in an amended originating application filed by the applicant on 20 April 2022 in respect of the following declarations: Details of claim On the grounds stated in the Second Further Amended statement of claim, accompanying affidavit or other document prescribed by the Rules, the Applicant claims the following relief pursuant to sections 545 and 546 of the Fair Work Act 2009 (Cth) (FW Act): Declarations By consent, declarations that: Contraventions by Albert on 23 July 2018 1. on 23 July 2018, the First Respondent (Albert) contravened section 500 of the FW Act by intentionally hindering and/or obstructing Fulton Hogan and Seymour Whyte, including their representatives, by positioning himself to prevent the movement of a truck carrying a girder such that the truck was not able to safely reverse and the girder was not able to be unloaded. 2. on 23 July 2018, Albert contravened section 500 of the FW Act by intentionally hindering and/or obstructing Fulton Hogan and Seymour Whyte, including their representatives, by distracting and disrupting those representatives from performing their usual and ordinary work in connection with the unloading of girders and the placement of them as scheduled to be performed such that only two of the seven girders scheduled to be lowered into place at the Bridge 21 Site were in fact lowered and thereby contributing to the shutdown of the Bridge 21 Site. Contraventions by Hynes on 23 July 2018 3. on 23 July 2018, the Second Respondent (Hynes) contravened section 500 of the FW Act by intentionally hindering and/or obstructing Fulton Hogan and Seymour Whyte, including their representatives, by positioning himself to prevent the movement of a truck carrying a girder such that the truck was not able to safely reverse and the girder was not able to be unloaded. 4. on 23 July 2018, Hynes contravened section 500 of the FW Act by intentionally hindering and/or obstructing Fulton Hogan and Seymour Whyte, including their representatives, by distracting and disrupting those representatives from performing their usual and ordinary work in connection with the unloading of girders and the placement of them as scheduled to be performed such that only two of the seven girders scheduled to be lowered into place at the Bridge 21 Site were in fact lowered and thereby contributing to the shutdown of the Bridge 21 Site. Contraventions by Ravbar on 23 July 2018 5. on 23 July 2018, the Third Respondent (Ravbar) contravened section 500 of the FW Act by intentionally hindering and/or obstructing Fulton Hogan and Seymour Whyte, including their representatives, by positioning himself to prevent the movement of a truck carrying a girder such that the truck was not able to safely reverse and the girder was not able to be unloaded. 6. on 23 July 2018, Ravbar contravened section 500 of the FW Act by intentionally hindering and/or obstructing Fulton Hogan and Seymour Whyte, including their representatives, by distracting and disrupting those representatives from performing their usual and ordinary work in connection with the unloading of girders and the placement of them as scheduled to be performed such that only two of the seven girders scheduled to be lowered into place at the Bridge 21 Site were in fact lowered and thereby contributing to the shutdown of the Bridge 21 Site. Contravention by Hynes on 24 July 2018 7. on 24 July 2018, Hynes contravened section 500 of the FW Act by acting in an improper manner by: a. standing very close to Adriaan Barendsen, Safety Advisor (Barendsen) and yelling loudly at him and in aggressive tone of voice, words to the following effect: "Where are the documents that we asked the Project to provide to us yesterday and the day before?" "You don't care about safety and you are supposed to be a safety manager" "You don't care about safety you're just in it for the wage" "You are impeding our demands, you could be fined $10,000 for this" b. at a later time, standing very close to Barendsen and veiling loudly at him and in an aggressive tone of voice words to the following effect, "You've just witnessed an unsafe act what are you going to do about it", and repeatedly veiling those words several times. Contraventions by the CFMMEU 8. on 23 July 2018, the Fourth Respondent (CFMMEU), by reason of sections 793 and 550 of the FW Act, was involved in Albert's contravention set out in order 1 above and is taken to have contravened section 500 of the FW Act. 9. on 23 July 2018, the CFMMEU, by reason of sections 793 and 550 of the FW Act, was involved in Albert's contravention set out in order 2 above and is taken to have contravened section 500 of the FW Act. 10. on 23 July 2018, the CFMMEU, by reason of sections 793 and 550 of the FW Act, was involved in Hynes' contravention set out in order 3 above and is taken to have contravened section 500 of the FW Act. 11. on 23 July 2018, the CFMMEU, by reason of sections 793 and 550 of the FW Act, was involved in Hynes' contravention set out in order 4 above and is taken to have contravened section 500 of the FW Act. 12. on 23 July 2018, the CFMMEU, by reason of sections 793 and 550 of the FW Act, was involved in Ravbar's contravention set out in order 5 above and is taken to have contravened section 500 of the FW Act. 13. on 23 July 2018, the CFMMEU, by reason of sections 793 and 550 of the FW Act, was involved in Ravbar's contravention set out in order 6 above and is taken to have contravened section 500 of the FW Act. 14. on 24 July 2018, the CFMMEU, by reason of sections 793 and 550 of the FW Act, was involved in Hynes' contravention set out in order 7 above and is taken to have contravened section 500 of the FW Act. … Orders 15. Orders pursuant to subsection 546(1) of the FW Act imposing pecuniary penalties against: a. Albert by reason of the contraventions set out in declarations 1, 4, 7 and 11 and 2 above; b. Hynes by reason of the contraventions set out in declarations 2, 5, 8 and 11 3, 4 and 7 above; c. Ravbar by reason of the contraventions set out in declarations 3, 6, 9 and 12 above 5 and 6; and d. the CFMMEU by reason of the contraventions set out in declarations 13 to 24 8 to 14 above. 16. 26. An order pursuant to subsection 546(3)(a) of the FW Act that the penalties imposed against Albert, Hynes, Ravbar and the CFMMEU be paid to the Commonwealth of Australia within 28 days of the order for payment. … 18. 28. Any further orders that this Honourable Court considers appropriate. (underlining and tracked changes in original) 3 An additional prayer for relief in the following form was not agreed by the parties: 17. 27. Orders that any pecuniary penalties imposed on Hynes and Ravbar be paid personally by them. (tracked change in original) 4 Plainly, given the agreed contraventions, remaining for determination by the Court is the imposition of penalty on each of the respondents, including the amount of the penalty and whether a personal payment order be imposed on the second and third respondents.

[2]

BACKGROUND 5 This matter originally came before me for hearing on liability on 2, 3, 4, 5 and 22 March 2021. The trial was to resume before me on 2 August 2021 for a further period of 2 weeks. By Order of 27 July 2021 the trial was vacated, with further hearing to be fixed in consultation with the parties. The matter was then set to recommence on 27 April 2022 until 11 May 2022. On 19 April 2022 the parties resolved the issue of liability and returned before me on 11 May 2022 for hearing on penalty. 6 By a second further amended statement of claim (statement of claim) and amended defence the facts in this matter were agreed. On 11 May 2022 the parties filed a provisionally agreed statement of facts to be read in conjunction with the statement of claim. I will return to this document later in these reasons. 7 Relevant facts are as follows. 8 Messrs Albert, Hynes and Ravbar, (collectively the Officials) were, at all material times, officers of the fourth respondent (the CFMMEU) and acting on behalf of the CFMMEU within the scope of their actual or apparent authority. Each of the Officials held a Federal Entry Permit and State Entry Permit within the meaning of s 12 the Fair Work Act and Part 7 of the Work Health and Safety Act 2011 (Cth) (WHS Act) for the relevant dates of entry. It is not in dispute that the Officials had valid entry permits. 9 Fulton Hogan Construction Pty Ltd (Fulton Hogan) and Seymour Whyte Constructions Pty Ltd (Seymour Whyte) formed Fulton Hogan Seymour Whyte JV (ABN 23 446 040 210) to undertake the upgrade of the Bruce Highway, from Caloundra Road to the Sunshine Motorway (the Project). Relevant to this matter, the Project site included: Construction of a bridge referred to as "Bridge 21" (Bridge 21 Site); A site along Caloundra Road where widening works were taking place (Caloundra Road Widening Site); and A site along the Bruce Highway (Bruce Highway Site). 10 At all material times the following persons were employed by either Fulton Hogan or Seymour Whyte in relation to the Project works: (1) Mr Adriaan Barendsen - Nightshift Health, Safety and Environment Adviser; (2) Mr Dareen Steen Andrew - Area Manager/Senior Project Engineer for Structures; (3) Mr Sean Cuffe - Safety Manager; (4) Mr Michael Fischer - Nightshift Supervisor; and (5) Mr Kurt Vorgias - Structures Supervisor.

[3]

Entry on 23 July 2018 11 On 23 July 2018 at approximately 8.20pm, the Officials attended the site office at the Project site (Site Office). Upon attending the Site Office the Officials informed Mr Barendsen that they were authorised to enter the Project site pursuant to their respective permits and written entry notices, and requested to be taken to the Bridge 21 Site where a suspected contravention or contraventions of the WHS Act had or were occurring. 12 At this time, the Officials also requested to view a number of documents, namely engineering documents and "work packs" relating to the girders intended to be installed later that night at the Bridge 21 Site. These documents were collated and later provided, however, the Officials asserted that these documents did not contain the requested engineering certification, nor the emergency evacuation and rescue plan. At or around the same time, an inspector from Work Health and Safety Queensland (WHSQ) attended the Site Office and requested and inspected documentation. The inspector subsequently left the Project site. 13 Mr Barendsen requested to see valid entry permits, which were provided individually by the Officials. It is not in dispute that the Officials were exercising a right of entry and held a reasonable suspicion that the WHS Act had or was being contravened at the time. After providing the permits, the Officials drove to the Bridge 21 Site, with Mr Barendsen arriving separately. 14 At approximately 11.30pm, a truck carrying a load of girders to be used in the construction of Bridge 21 arrived. Shortly after arrival, a girder was lifted from the truck by a crane and lowered onto the Bridge 21 Site. Whilst the girder was being hooked up to a hoist and lifted into place, the Officials approached the girder and remained close to it. 15 Shortly after, a further truck carrying a girder arrived at the Bridge 21 Site and attempted to unload the girder. The Officials moved into a position whereby the truck could not safely reverse to the relevant unloading position, and the girder could not be unloaded. At this time, Messrs Barendsen, Andrew and Vorgias had ceased their usual duties as they were responding to the presence of the Officials. 16 At approximately 2.00am work at the Bridge 21 Site was shut down, given the safety risk to the Officials attending and persisting at the site. At this time, only 2 of the scheduled 7 girders could be unloaded.

[6]

Applicant's submissions on objections to evidence of applicant's witnesses 28 In summary, the applicant submitted that the evidence on which it sought to rely was intended to provide context to the Court, as well as being referrable to evidence of loss and harm and the nature and circumstances of the contravening conduct. 29 Notwithstanding the admissions of the respondents resolving liability, and that the facts in issue have been agreed between the parties in the pleadings, the applicant submitted that the threshold test for relevance was "not high". The applicant submitted that there were facts beyond the pleaded case on liability, which were relevant to penalty and should be admitted. The applicant relied upon the following comments of this Court in ABCC v Holl (The Wheeler Cranes Case) [2021] FCA 1480: 132. Although initially the respondents attempted to confine the factual matters which were said to be relevant to the imposition of the penalty, as noted above, at the hearing they accepted that they were not challenging the SOAF which contained the factual matters initially challenged. It was accepted by the respondents, as it must be, that it is well settled that in the imposition of a civil penalty, an evaluation is required not only of the "nature and extent of the contravention", but also of the "circumstances in which the contravention took place"… It accepted therefore, that a number of matters challenged in writing were relevant to the circumstances in which the contraventions occurred. That said, even after the respondents' concession, their submission as to how one considers the circumstances in which the conduct occurred in the imposition of a penalty, was artificial. There is no doubt that the respondents are to have the penalties imposed for the admitted contraventions, but the relevant circumstances in which the contraventions occurred can assist in assessing the seriousness of the contraventions. (citations omitted, emphasis added) 30 In addition, the applicant submitted that none of the evidence sought to be relied upon was "new" to the respondents, given that it was existing evidence in the proceeding and that 3 of the 5 witnesses had been subject to cross-examination, namely Messrs Andrew, Vorgias and Eames.

[7]

Respondents' submissions on objections to evidence of the applicant's witnesses 31 The respondent submitted, in summary, that the test in respect of relevance pursuant to ss 55 and 56 of the Evidence Act 1995 (Cth) was clear: namely that evidence could only be relevant if it could rationally affect the assessment of the probability of the existence of a fact in issue. 32 Despite the applicant's submission that the evidence sought to be relied on had already been adduced for the purposes of liability, the respondents maintained their objections on the basis that the facts in issue in this case had been agreed and admitted, and there was, in essence, no contest about an admitted material fact, as pleaded, capable of being adduced at this point in time. 33 It followed that, had this been a case where the Court made findings on liability and the applicant's contention regarding evidence was correct, it would then be at liberty to file further material relevant to that which had already been the subject of the Court's ruling. There was no suggestion that matters contained in the affidavits on which the applicant sought to rely could not have been pleaded, and that by seeking to rely on the evidence at this point in time the applicant was inviting the Court to make further findings of fact. In particular, the respondent relied on the observations of Bromberg J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bay Street Case) (No 2) [2019] FCA 1859 as follows: [8] At a pre-trial conference in the week before the trial, I granted leave to the CFMEU to substantially amend its Defence in the proceeding, such that the issues remaining in dispute narrowed significantly. By its Further Amended Defence, the CFMEU admitted all of the material facts pleaded in the Commissioner's Further Amended Statement of Claim. In substance, what remained of the CFMEU's case was the denial that BPM's actions may be characterised as "industrial activity". … [10] As I have indicated, all of the material facts relied upon by the Commissioner in his Further Amended Statement of Claim have been admitted by the CFMEU in its Further Amended Defence. The Commissioner nevertheless elected to lead evidence in support of his case, including by calling two witnesses. Neither of the Commissioner's witnesses were cross-examined by the CFMEU, and the subject of the evidence tendered was otherwise uncontroversial. [11] However, it was precisely because the evidence was uncontroversial that the CFMEU objected to its tender. It was said that evidence going to a fact which had been admitted was not evidence going to a fact in issue, and was therefore not relevant and inadmissible. [12] Rather than dealing with the objections to the evidence on a case by case basis at the time, it was agreed between the parties that all of the Commissioner's evidence would be admitted subject to that overarching objection. The Commissioner accepted that in dealing with the evidence in this way, he would be more strictly confined to the case put in his Further Amended Statement of Claim. First, the Commissioner would foreclose any opportunity to amend his Further Amended Statement of Claim if evidence were later found not to go to any material fact in issue. Second, it would also follow that where a matter had not been pleaded, the Commissioner could not later contend on the basis of evidence the subject of objection that the matter was nevertheless "in the ring". [13] With all of this in mind, I propose to recount the background facts below taking into account all of the evidence not objected to. I shall address some specific issues that arise under the objection or in relation to the pleadings in the course of my consideration of each of the claims, but broadly speaking it has not been necessary to take into account the evidence the subject of objection. If it had been necessary to do so I would have upheld the CFMEU's objection on the basis that the evidence travelled beyond the facts in issue as identified on the pleadings. (emphasis added) 34 In addition, the respondents submitted that the Court was empowered to revisit questions of admissibility in circumstances where new information arose or circumstances changed. 35 The respondents drew a distinction between what they described as the applicant's attempt to expand on the facts constituting the contravening conduct after securing the respondents' admissions, and the admission of evidence concerning those matters relating to penalty (such as the contravener's past records or evidence of loss).

[8]

Consideration of objections to evidence 36 It is not in dispute that the Court may accept evidence relevant to the consideration of penalty. Indeed, both parties subsequently filed affidavit material referable to penalty, namely the affidavits of Ms Fitzpatrick, Ms Collie and Ms Butkus. No objection was taken to that material. 37 It is necessary to consider at a preliminary level exactly what evidence is sought to be relied upon in light of the respondents' objections and the submissions of the parties. 38 First, the evidence of Mr Andrew is referrable to a series of Google Earth images of the Bridge 21 Site, including the Officials' position at the relevant time, followed by Mr Andrew deposing at [101] as to the time the Bridge 21 Site was shut down. I accept the applicant's submission that this evidence was nothing "new" to the respondents, and was material previously relied on to establish the allegation of liability. It follows however that this evidence does nothing more than visually assist the Court in relation to matters that were adequately pleaded and have already been agreed by the parties. I accept the respondents' submission that this evidence is not relevant. Further, and in any event, I would query its probative value at this stage of the proceedings. 39 Second, the evidence of Mr Cuffe pertains to a number of phone calls that he made as a result of the Officials' contravening conduct, Mr Cuffe's views as to the necessity to shut down the site due to that conduct, and further facts relating to the shutdown. In the applicant's submission this evidence would assist in the Court's consideration of disruption (in the assessment of penalties). The respondents contend that it is unclear how this pertains to evidence of loss. In my view, this material is not relevant to the imposition of penalty and does little to assist the Court in this regard. 40 Third, the evidence of Mr Vorgias is twelve paragraphs in length. The substance of that affidavit goes directly to Mr Vorgias' observations on the night of 23 July 2018, and in particular the attempted unloading of the girders, and requests made to the Officials to move away from the girders. After considering the material, I accept the respondents' submission that the material is not relevant, particularly in circumstances whereby verbal requests made to the Officials to remove themselves from the area were removed from the statement of claim, no longer pleaded and originally denied by the respondents as part of their defence (see for example para [29] of the statement of claim and amended defence). 41 Fourth, the evidence of Mr Barendsen annexes a number of images, photographs, videos and a "mud map" prepared by him. In line with my ruling above regarding the evidence of Mr Andrew, I do not consider this evidence relevant to the imposition of penalty in circumstances where the facts are agreed between the parties. Further, it is difficult to see how paras [61] and [66] are relevant to the matter presently before me given that pleadings regarding the "exclusion zone", and the requests of both Mr Andrew and Mr Cuffe to the Officials to leave the exclusion zone, were removed from the pleadings, and references to the exclusion zone by the applicant's own concession are not relevant (see in particular paras [33] and [35] of the statement of claim and amended defence, and the written submissions of the applicant filed 27 April 2022 para [9]). Given that the pleadings relating to verbal requests for the Officials to leave the Bridge 21 Site have been removed, I do not consider this material to be relevant. Additionally, the fact that the Officials stood in the way of the truck unloading a girder is not in dispute, and further evidence as to their positioning inside the exclusion zone and thereby blocking the truck is not relevant to a fact in issue. 42 Mr Barendsen also deposed as to feelings of belittlement and intimidation by Mr Hynes' conduct, which the applicant submitted were relevant to considerations of loss and harm. When considering the whole of Mr Barendsen's evidence, it appears that most of that material is either not relevant to the circumstances of the contraventions as pleaded, or not relevant in the sense that the facts and contraventions have already been agreed. 43 To illustrate, para [93] is not in issue. It has been admitted by the second respondent that he yelled in an aggressive tone whilst standing closely to Mr Barendsen. Similarly, para [95] has been admitted, and the pleadings stipulated that the second respondent's conduct was repetitive. In light of my observations thus far, it is unclear how paras [96] and [97] are relevant. 44 Further, para 111(c) of Mr Barendsen's affidavit states: I felt belittled by Hynes' conduct towards me in this video. He stood close to me and stated emphatically that, among other things, "you should be embarrassed and ashamed" and that "you should quit your job". His words were upsetting. They were part of an ongoing personal attack on me. 45 The parties agreed as to the wording the subject of the admitted contraventions. For the sake of clarity, the pleaded case was that Mr Hynes yelled at Mr Barendsen words to the following effect: "Where are the documents that we asked the Project to provide to us yesterday and the day before?" "You don't care about safety and you are supposed to be a safety manager" "You don't care about safety you're just in it for the wage" "You are impeding our demands, you could be fined $10,000 for this" 46 I accept the respondents' submission that this material is not relevant, that the boundaries of the dispute have been pleaded, and that further material such as which is sought to be relied upon by the applicant is not relevant to the task presently before the Court. 47 Paragraphs [94], [99(b)] and [107] detail Mr Barendsen's feelings in respect of the conduct displayed by Mr Hynes. While I consider that this evidence is admissible, and relevant, I consider that it adds little to the applicant's case. I am prepared to admit it, noting that Mr Barendsen was not cross-examined. 48 Finally, the evidence of Mr Eames was relevantly a single paragraph as follows: 43. The loss of productivity for two night shifts on 23 and 24 July 2018 was significant. Work to be completed during the night shifts is planned in advance and is not simply able to be done the next night. Schedules for all the work need to be reconsidered and replanned. This is because subcontractors may not be available if they are booked for other jobs and more planning and community engagement may need to occur before the works can resume. 49 Although this evidence is scant, I consider that it is relevant and ought be admitted. 50 It follows that the respondents' objections be upheld in respect of evidence of Mr Andrew, Mr Cuffe and Mr Vorgias, but not in respect of Mr Barendsen and Eames. 51 It further follows that I will have regard to the statement of agreed facts filed on 11 May 2022.

[10]

Applicant's submissions on penalty 56 The applicant submitted, in summary, as follows: That the respondents admitted to intentionally hindering/obstructing work was to be taken into account when considering the object gravity of the contravening conduct; The objective seriousness of the contravening conduct was not diminished by the hours or duration by which it took place, but rather the harm caused and relevant consequences; That Messrs Albert, Hynes and Ravbar held a bona fide concern (pursuant to which they were exercising a statutory right) did not in any manner mitigate the objective seriousness of the contraventions; Even so, the respondents have not lead any evidence to explain the contravening conduct. Accordingly, a Jones v Dunkel inference should be drawn that the contravening conduct was not justified by a concern as to safety; In considering the principle of general deterrence, there was no evidence from the respondents as to any "system of compliance" or corrective action to prevent this type of conduct from recurring; The conduct of the respondents can be contrasted with the conduct of the WHSQ inspector who inspected documents at or around the same time, and conformed with their own legal obligations in a considerate manner; The Court is required to look at the circumstances of the contravener. General deterrence is significant in this matter having regard to the number of matters in which the CFMMEU has been involved whereby its officials continue to contravene s 500 of the Fair Work Act; Despite a lack of quantification of financial loss, the loss of productivity occasioned by the contravening conduct was not insignificant. Additional harm was occasioned in relation to the second respondent's conduct, namely, the improper conduct and statements towards Mr Barendsen; The applicant accepted that the need for specific deterrence in relation to Mr Albert was lower, given that he was no longer employed by the CFMMEU, however the need remained to deter him from any like conduct were he to hold a permit again; Despite the fact that Mr Hynes and Mr Ravbar did not continue to hold permits, they remained officials of the CFMMEU and could apply for such permits at any time. In this respect, both should be subject of a personal payment order for the purposes of both specific deterrence and punishment; All respondents had previous contraventions. In relation to Mr Ravbar, for example, that he has had a "lengthy career as a union official" with "only" three prior contraventions was insufficient to negate the implication of a continuing defiance of the law on his part, particularly where the CFMMEU remained "an organisation that is the largest serial contravener of Part 3-4 in the nation"; Further, in considering a personal payment order, the fact that the second respondent had moved from the CFMMEU to the CFMEUQ was not a mitigating fact - rather, if a personal payment order was not imposed, it would send a message that "serial contraveners can escape all liability for their actions simply by moving to a different part of the same organisation"; Whilst there was a saving of resources of the Court and the parties given the respondent's admissions, the matter had been afoot since 2019 and had been the subject of cross-examination of witnesses, objections and interlocutory disputes. To that extent the admissions were late in the proceedings. There was otherwise no evidence by the first to third respondents regarding contrition. Any discount to be attributed to these admissions should be limited; The respondent's submissions were a de facto way of submitting that the Court consider proportionality, as opposed to the position taken in Pattinson; Despite the differing conduct in Pattinson in relation to the "no ticket, no start" conduct, the Court should consider the litany of cases whereby the CFMMEU has contravened s 500 of the Fair Work Act, including in particular, those contraventions relating to the hindrance or obstruction of work; and There was no reason to allow a reduction regarding the principle of totality given the deliberate nature of the contraventions and history.

[12]

CONSIDERATION 58 Section 546 (1) of the Fair Work Act vests in this Court the power to impose civil penalties referrable to a contravention of a civil remedy provision. It provides: Pecuniary penalty orders (1) The Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision. 59 The contraventions in this matter concern s 500 of the Fair Work Act, as follows: Permit holder must not hinder or obstruct A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner. Note 1: This section is a civil remedy provision … 60 Principles relevant to the imposition of penalties are well-known. In Australian Building and Construction Commissioner v Pattinson (2022) 399 ALR 599; [2022] HCA 13, the majority explained at [15]: 15 Most importantly, it has long been recognised that, unlike criminal sentences, civil penalties are imposed primarily, if not solely, for the purpose of deterrence. The plurality in the Agreed Penalties Case said: "[W]hereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty, as French J explained in Trade Practices Commission v CSR Ltd, is primarily if not wholly protective in promoting the public interest in compliance: 'Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act] … The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act.'" (emphasis added, footnotes omitted) 61 Further, the Full Court in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97; (2018) 264 FCR 155 at [19]-[22] observed as follows: [19] It is unnecessary to engage in any extended discussion of principle. Of particular significance is the recognition that deterrence (general and specific) is the principal and indeed only object of the imposition of a penalty - to put a price on contravention that is sufficiently high to deter repetition by the contravener and others who might be tempted to contravene the Act … Retribution, denunciation and rehabilitation have no part to play. [20] Relevant factors in the overall assessment of penalty were helpfully listed by French J in CSR. They have been adopted in many cases. For present purposes, they can be restated as follows: the nature, character and seriousness of the conduct; the loss and damage caused; the circumstances in which the conduct took place; the size of the contravener and its degree of power; the deliberateness of the conduct and the time over which it occurred; the degree of involvement of senior officials or management; the culture of the organisation as to compliance or contravention; and, any co-operation with the regulator and contrition. [21] The seriousness of the contravention and other features of the conduct which may be seen as relevant to it … find their place in understanding the degree of deterrence that is necessary to be reflected in the size of the penalty … [22] The overwhelming importance of deterrence as the protective purpose of the penalty does not exclude the need to determine a penalty which is proportionate to the contravening conduct. The history of contravention is to be taken into account in fixing the proper level of penalty for the proportionate response to the contravention in question. Proportionality has within it the need to characterise the seriousness of the contravention. Proportionality of penal response to a contravention assessed by reference to its seriousness and gravity is an essential characteristic of the application of the statute. The penal response is for that contravention, not earlier contraventions … Prior contraventions may reveal an apparent disregard for the Act and the need for deterrence by a penalty at a level appropriate to achieve that objective. It is to be borne in mind, however, that it is for the conduct in question that the penalty is imposed, not for prior conduct. (emphasis added) 62 Whilst the factors listed by French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 and cited by both the High Court in Pattinson, and the Full Court in The Non-Indemnification Personal Payment Case are useful, they are not to be utilised as a rigid legal checklist: Pattinson at [19]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at 580 [91]. 63 Rather, the Court is required to exercise its discretion in accordance with the circumstances before it, and conduct a balancing exercise in order to arrive at an appropriate penalty which achieves the purpose of promoting the public interest in compliance and deterring like conduct: see Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Toowoomba Bypass Case) [2021] FCA 1128 at [55]. 64 The parties submitted that the following considerations were of the most relevance in the case before me: (1) Nature and circumstances of the contravening conduct, including the objective seriousness and deliberateness of the conduct; (2) The extent of loss and harm suffered; (3) Circumstances of the contraveners, including the size, status and resources of the CFMMEU, prior contraventions and need for deterrence; and (4) Contrition and cooperation. 65 I will now turn to assessment of appropriate penalties.

[13]

Nature and circumstances of the contravening conduct 66 The circumstances of the contraventions were agreed by the parties. The contravening conduct took place over 23 and 24 July 2018. 67 The contraventions, as admitted, pertained to the first to third respondents positioning themselves to prevent the movement of a truck carrying a girder, such that the girder could not be unloaded, and by doing so disrupting and distracting the representatives of Fulton Hogan and Seymour Whyte from performing their usual and ordinary duties. As such, only 2 of the 7 girders were able to be unloaded, and the Bridge 21 Site was shut down in the early hours of the morning of 24 July 2018. 68 In relation to the contravention of the second respondent on 24 July 2018, at an unspecified time after 8.50pm Mr Hynes proceeded to act improperly towards Mr Barendsen. This improper conduct was repeated at a further unspecified time after 9.35pm on that same day. 69 The respondents submitted that the contravening conduct was of limited duration. The applicant submitted that the respondents adduced no evidence of the duration of the conduct. On the facts before me, as agreed between the parties, it can be inferred that the conduct of 23 July 2018 by the first, second and third respondents was of limited duration. It certainly occurred between the hours of 11.30pm and 2.00am, during which time the respondents arrived on site at Bridge 21 and until the site was shut down. In relation to the contraventions of the second respondent on 24 July 2018 that conduct occurred between the hours of 8.50pm and shortly after 9.35pm. It can be inferred that the conduct was of limited duration. 70 The applicant submitted that the conduct in question occurred not in the "normal course of events" but under the statutory regime of entry rights. It submitted that given these circumstances the Court should find that the behaviour of the respondents was serious. In particular, the applicant contended that the deliberate and intentional obstruction (as admitted) propounded the seriousness of the contraventions and warranted a higher penalty. The applicant also pointed to the repetitive conduct of Mr Hynes in his behaviour towards Mr Barendsen. 71 The respondents accepted that the conduct of Mr Hynes on 24 July 2018 was repetitive. The respondents' position however was that, first, there was no swearing, threats of violence or damage in Mr Hynes' conduct, and second, the respondents entered on to the Project with a bona fide concern as to safety. In my view, that there was an absence in swearing, threats of violence or damage was not a mitigating factor - rather the presence of those factors would have aggravated the objective seriousness of the contravening conduct. Similarly, that there was a bona fide concern and an absence of ulterior motive did not diminish the objective seriousness of the conduct. 72 Powers conferred by the right of entry provisions under the Fair Work Act a ought be exercised diligently and responsibly. I note the observations of White J in the Australian Competition and Consumer Commission (ACCC) v Construction, Forestry, Maritime, Mining and Energy Union (Adelaide Airport Case) [2021] FCA 951: [29] Turning to the FW Act, Div 2 of Pt 3-4 of the FW Act grants permit holders rights of entry of two kinds: entry for the purposes of investigating contraventions of the FW Act itself and of a limited class of industrial instruments (ss 483A(1); 483D(1)); and entry to hold discussions with employees performing work on the premises. [30] Section 480 identifies the object of Pt 3-4. It specifies: 480 Object of this Part The object of this Part is to establish a framework for officials of organisations to enter premises that balances: (a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of: (i) this Act and fair work instruments; and (ii) State or Territory OHS laws; and (b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and (c) the right of occupiers of premises and employers to go about their business without undue inconvenience. [31] Absent these legislative provisions, union officials would have no right to enter the premises of others without the agreement of the occupier. Any unauthorised entry would therefore be unlawful and may amount to a criminal offence. Thus, in Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56; (2015) 230 FCR 15 at [14], the Full Court said: A person granted an entry permit is conferred extensive power. Entry permits confer rights which significantly erode the common law right of occupiers to exclude those to whom they do not wish to grant entry. [32] It is evident that, in granting rights of entry under the FW Act, the legislature has sought to balance the interests of occupiers of premises, employers, unions and employees: Maritime Union at [14]-[15]. Unions and employees have an interest in union officials being able to enter premises in order to ensure compliance with industrial legislation and instruments. The ability of permit holders to enter premises is an important aid to effective communication between employees and union officials and to the representation by unions of the industrial interests of employees. Occupiers and employers, on the other hand, have an interest in being able to conduct their business activities without disruption or inconvenience. [33] A number of provisions in Pt 3-4 of the FW Act are directed to achieving a balance of these interests. First, Pt 3-4 confines the persons who may exercise rights of entry. Those rights are not available to any person or, for that matter, to any union official. They are available only to those union officials who have been issued a permit by the Fair Work Commission (the FWC). Before issuing a permit, the FWC must be satisfied that the official is a "fit and proper person" (s 512). The determination of whether the official is such a person takes account of matters bearing upon the official's character and history of compliance with industrial legislation and whether the official has had appropriate training in the rights and responsibilities of a permit holder (s 513). [34] Secondly, Pt 3-4 regulates the time and manner in which the rights it grants may be exercised. Permit holders cannot enter without written notice given at least 24 hours in advance (ss 487 and 518), thereby giving the occupier or employer, as the case may be, some forewarning of the proposed entry and of its purpose. The time at which permit holders may enter premises and at which they may hold discussions with employees are regulated (ss 490 and 492), as are the places at which they may meet the employees (s 492). [35] The exercise of rights in accordance with Pt 3-4 by permit holders is protected by provisions making it unlawful for a person to refuse or delay unduly their entry onto the premises (s 501) and which make it unlawful for a person to hinder or obstruct intentionally a permit holder exercising such rights (s 502). [36] Section 500 is part of this scheme of balancing of interests because it imposes a corresponding obligation on permit holders exercising, or seeking to exercise, rights in accordance with Pt 3-4 not to hinder or obstruct intentionally any person or otherwise to act in an improper manner. 73 The applicant accepted that the Officials reasonably suspected that there were contraventions of the WHS Act. Whilst this belief might explain the entry of the Officials on to the Project Site, in the absence of evidence it does not mitigate the seriousness of the subsequent contravening conduct, which included obstruction and improper behaviour: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Kiama Aged Care Centre Case) (No 2) [2022] FCA 19 at [50]; Australian Competition and Consumer Commission v Construction, Forestry, Maritime, Mining and Energy Union (The Adelaide Airport Case) [2021] FCA 951 at [122] - [129]. It is the manner in which the respondents chose to conduct themselves upon exercising their right of entry that is relevant to the circumstances of the contraventions: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Morphettville Park Case) [2021] FCA 1640 at [31]; see also Adelaide Airport Case. Noting the lack of evidence on behalf of the respondents, I accept (as admitted) that the respondents deliberately engaged in the conduct the subject of the events of 23 and 24 July 2018. The deliberateness of the respondents' conduct increases its objective seriousness. In this regard, I particularly note the seemingly unprovoked and entirely inappropriate conduct of Mr Hynes towards Mr Barendsen. 74 It follows that, whilst the contravening of the respondents was serious, in light of the whole of the circumstances the objective seriousness falls within the low to mid-range.

[15]

Circumstances of the contraveners, including prior contraventions and the need for deterrence 79 The CFMMEU is a large and well-resourced organisation with a substantial history of contraventions of the Fair Work Act. The CFMMEU seeks no penalty mitigation in line with its size or financial position. In this respect, and considering the evidence of Ms Fitzpatrick, the penalty to be imposed on the CFMMEU must be of significant force so as not to simply be part of the cost of doing business: Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at [66]; Pattinson at [17]; Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Bendigo Theatre Case) (No 2) [2018] FCA 1211 at [16]. 80 I note in particular the table "Annexure B" to the applicant's submissions, detailing a significant amount cases whereby the CFMMEU has been the subject of civil penalties for similar conduct as far back as 1999. The applicant placed significant emphasis on the recidivist nature of the CFMMEU and its "organisation culture in which contraventions of the law has been normalised": Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Mitcham Rail Case) [2015] FCA 1173 at [29]. It follows that the need for deterrence in relation to the CFMMEU is high. 81 As the applicant pointed out, at the time of hearing, this was the third matter involving Messrs Albert and Hynes, and the fourth involving Mr Ravbar. I will now turn to the circumstances of the individual respondents. 82 Mr Albert's history of contraventions of s 500 can be summarised as follows: Toowoomba Bypass Case - Mr Albert on 1 May 2018 acted in an improper manner whilst exercising a State or Territory Occupational Health and Safety right by refusing a request to produce his federal entry permit and refusing to leave the site. In this case, Mr Albert was fined $4,000 for one contravention; and Adelaide Airport Case - Mr Albert on 20 June 2019 acted in an improper manner by swearing at and speaking in an aggressive and bullying manner to a Westpac representative. Mr Albert was fined $5,000 in respect of the one contravention. 83 I understand that Mr Albert is no longer an employee or officer of the CFMMEU. The respondents submitted that in the case of Mr Albert the need for specific deterrence was low, as he no longer had a right of entry permit and was unable to contravene Part 3-4 of the Fair Work Act. The applicant agreed that the need for specific deterrence in the case of Mr Albert was lower than would have been the case if he remained in the employment of the CFMMEU, however the need for general deterrence was not diminished because Mr Albert had left his employment with the CFMMEU and ceased to hold the relevant permit. 84 Mr Hynes' history of contraventions of s 500 can be summarised as follows: Toowoomba Bypass Case - Mr Hynes on 1 and 2 May 2018 acted in an improper manner whilst exercising a State or Territory Occupational Health and Safety right by refusing a request to produce his Federal entry permit and refusing to leave the site. Mr Hynes received two penalties of $4,000 each in respect of 3 contraventions; and Australian Building and Construction Commissioner v Hynes [2019] FCCA 3145 - Mr Hynes on 23 August 2018 acted in an improper manner by yelling in an aggressive manner at the General Manager of Enco Precast Pty Ltd. The Court in that case imposed a penalty of $4,400. 85 Similarly to Mr Albert, Mr Hynes had ceased to be an employee of the CFMMEU. The respondents submitted that he had a low likelihood of contravening Part 3-4 of the Fair Work Act given that he no longer held an entry permit. Nonetheless, that Mr Hynes had engaged in conduct below the standards of a person exercising a statutory right (for the second time) was a significant factor weighing in favour of the need for specific and general deterrence. 86 I note that, on the evidence of Ms Butkus, Mr Hynes attended an anger management course following these events. 87 Lastly, Mr Ravbar's history of prior contraventions can be summarised as follows: Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman [2023] FCA 72 (on appeal from Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2022] FedCFamC2G 40) - Mr Ravbar on 5 November 2020 contravened s 500 of the Fair Work Act by attending the relevant site without giving 24 hours' notice, remaining on the site with no lawful basis, failing to comply with OHS requirements, attending an unauthorised meeting and remaining on site despite the occupier's requests. Mr Ravbar at first instance received a penalty of $10,656. On appeal, that amount was reduced to $4,660; Australian Building and Construction Commissioner v Ravbar (No 2) [2019] FCA 522 - Mr Ravbar in October 2012 directed organisers to stop cranes from working in circumstances where Universal Cranes would not enter into a model CFMMEU agreement. This conduct contravened ss 340, 343 and 344 of the Fair Work Act. Mr Ravbar was issued with a penalty of $5,000; and Hamberger, Employment Advocate v Construction, Forestry, Maritime, Mining and Energy Union [2002] FCA 586 - Mr Ravbar received a penalty of $750 in respect of contravening conduct. 88 The respondents submitted on behalf of Mr Ravbar that these contraventions were of a different character to the contraventions in this case. The respondents further submitted that the historical contraventions had occurred years before the contraventions in question in this case. The respondents submitted that, given Mr Ravbar's lengthy career with the union and the limited number of contraventions, it could not be said that his previous conduct evidenced a continuing defiance of the law. 89 The applicant submitted that, notwithstanding the seniority of Mr Ravbar and his lengthy career with the CFMMEU, he still had a "rap sheet". 90 In my view, whilst Mr Ravbar clearly has prior contraventions of the Fair Work Act (which I take into account in considering the need for specific deterrence), his history of contraventions does not demonstrate an attitude of defiance of the law, particularly in light of his lengthy career with the union. 91 Plainly, all three individual respondents have engaged in conduct below the standard expected of officials exercising a right of entry under Part 3-4 of the Fair Work Act. They have admitted as much. It is also plain that the respondents have each contravened s 500 of the Fair Work Act before. The second respondent could in future apply for an entry permit depending on his future career moves, and the third respondent is in a position to do so. This is a relevant consideration in determination of an appropriate penalty: see Australian Building and Construction Commissioner v Ingham (180 Brisbane Construction Case) (No 2) [2021] FCA 263 at [51]. I also note that none of the respondents have filed any evidence in these proceedings in this regard: cf Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Morphettville Park Case) [2021] FCA 1640 at [44].

[16]

Cooperation and contrition 92 As I noted earlier in these reasons, this matter came before me for hearing on liability on 2, 3, 4, 5 and 22 March 2021 and has been the subject of interlocutory disputes. During that time a number of witnesses were examined-in-chief, subjected to cross-examination and on the cusp of re-examination. Due to no fault of the parties, the matter was adjourned, part-heard, until 27 April 2022. 93 Prior to the resumption of hearing in April 2022, the parties came to an agreement on liability 8 days before the matter was scheduled to recommence. By the respondents' admissions, there was undoubtedly a saving of the time and resources of both the Court and the applicant. The applicant accepted that there is some utilitarian saving in the avoidance of the 10 day trial, however it submitted that limited weight should be attributed to this factor given that it was a rather late admission and without contrition. The applicant referred the Court to Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 where Stone and Buchanan JJ stated: [76] …. that a discount should not be available simply because a respondent has spared the community the cost of a contested trial. Rather, the benefit of such a discount should be reserved for cases where it can be fairly said that an admission of liability: (a) has indicated an acceptance of wrongdoing and a suitable and credible expression of regret; and/or (b) has indicated a willingness to facilitate the course of justice. 94 I accept the applicant's submission that the admissions came rather late in the piece. Indeed, the proceeding was filed on 21 October 2019, and the admissions came not only after all evidentiary material had been filed and served but after several days of trial. However, I note the respondent's submission that a number of claims by the applicant (relating to contraventions of s 499 of the Fair Work Act) were abandoned, and that the respondents' admissions followed shortly after that abandonment. 95 The applicant submitted that despite any cooperation by the respondents, in line with Mornington Inn there has been no demonstration of contrition or corrective action by the respondents. However, as a general principle I note that the absence of any apology does not operate as an aggravating factor: BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336 at [10]; Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd (No 2) [2021] FCA 1149 at [48]. 96 Overall, the saving of what would have been a further 2 weeks of hearing is not insignificant, and some acceptance of responsibility can be imputed to the respondents by their admissions. I consider that the respondents are entitled to a limited reduction in penalty compared with that which otherwise would have been imposed: see Adelaide Airport Case at [148].

[17]

Amount of penalty to be imposed 97 As a general proposition, pursuant to s 546 (2) (a) and item 25 column 4 of s 539 of the Fair Work Act, the maximum penalty for a contravention of s 500, by an individual, is 60 penalty units per contravention. As at the time of the contraventions, one penalty unit was $210.00. The maximum, for an individual is therefore $12,600.00. 98 For a body corporate such as the CFMMEU, s 546(2)(b) dictates that the maximum penalty is five times the maximum penalty for an individual, being 300 penalty units per contravention and equating to $63,000.00. 99 I note that there is to be "some reasonable relationship between the theoretical maximum and the final penalty imposed": Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 at [155] - [156]. Of course, as the High Court has noted, the maximum penalty is not to be employed in a civil context in the same manner as in a criminal context. In particular, the Court noted in Pattinson: [50] This Court's reasoning in the Agreed Penalties Case is distinctly inconsistent with the notion that the maximum penalty may only be imposed in respect of contravening conduct of the most serious kind. Considerations of deterrence, and the protection of the public interest, justify the imposition of the maximum penalty where it is apparent that no lesser penalty will be an effective deterrent against further contraventions of a like kind. Where a contravention is an example of adherence to a strategy of choosing to pay a penalty in preference to obeying the law, the court may reasonably fix a penalty at the maximum set by statute with a view to making continued adherence to that strategy in the ongoing conduct of the contravenor's affairs as unattractive as it is open to the court reasonably to do. [51] In regarding the statutory maximum penalty as having a role in a civil penalty context as some kind of graduated scale by which contraventions are to be categorised in order of seriousness and corresponding penalty, the Full Court attempted to transplant a concept of retributive justice, the origins of which are to be found in the criminal law, into a civil penalty regime in which retribution has no role to play. This "yardstick" understanding of the maximum penalty, with its focus on the objective seriousness or gravity of a contravention, is reminiscent of retributive notions of "just deserts" and the adage that the punishment should fit the crime. [52] It is also instructive to note that, even in the criminal law, the role of the maximum penalty as a yardstick is not controlling, and must instead be balanced with all other relevant factors. In Markarian v R , Gleeson CJ, Gummow, Hayne and Callinan JJ said: [C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. (emphasis added) [53] In a civil penalty context, the relevance of a prescribed maximum penalty as a yardstick was explained by the Full Court of the Federal Court in Reckitt Benckiser , where their Honours, citing Markarian, said: The reasoning in Markarian about the need to have regard to the maximum penalty when considering the quantum of a penalty has been accepted to apply to civil penalties in numerous decisions of this Court both at first instance and on appeal. As Markarian makes clear, the maximum penalty, while important, is but one yardstick that ordinarily must be applied. Care must be taken to ensure that the maximum penalty is not applied mechanically, instead of it being treated as one of a number of relevant factors, albeit an important one. Put another way, a contravention that is objectively in the mid-range of objective seriousness may not, for that reason alone, transpose into a penalty range somewhere in the middle between zero and the maximum penalty. Similarly, just because a contravention is towards either end of the spectrum of contraventions of its kind does not mean that the penalty must be towards the bottom or top of the range respectively. However, ordinarily there must be some reasonable relationship between the theoretical maximum and the final penalty imposed." (citations omitted) [54] Two aspects of the Full Court's reasoning in this passage from Reckitt Benckiser deserve particular emphasis here. The first is their Honours' recognition that the maximum penalty is "but one yardstick that ordinarily must be applied" and must be treated "as one of a number of relevant factors". As has already been seen, other factors relevant for the purposes of the civil penalty regime include those identified by French J in CSR. 100 The applicant submitted that maximum penalty ($63,000.00) be imposed on the CFMMEU for each of the seven contraventions. The respondent submitted that a penalty in the lower range, namely $15,000.00, be imposed for each contravention. The difference between the applicant's aggregate penalty ($441,000.00) and the respondents' ($105,000.00) is a sum of $336,000.00. 101 The applicant further submitted in relation to Messrs Albert, Hynes and Ravbar that a penalty in the high-mid range be imposed, that is a figure between $8,820 and $10,080, for each of the applicants' contraventions. The respondents' submitted that, for Messrs Albert and Ravbar, penalties in the lower range of $3,000.00 per contravention were appropriate. In relation to Mr Hynes, the respondents submitted that a penalty of $2,500.00 be imposed for each of the three contraventions. 102 The applicant submitted that there was no role for totality in this case, particularly in circumstances whereby there have been deliberate contraventions on behalf of the respondents. 103 Turning to principles of course of conduct and totality which appear to be relevant in this case, I make the following observations. 104 It is not in dispute that s 557 of the Fair Work Act, pertaining to a statutory course of conduct, does not apply. The parties agreed that the contraventions of Messrs Albert, Hynes and Ravbar on 23 July 2018 arose from one course of conduct. The question which arises however is how this translates into appropriate penalties in the circumstances of this case. 105 In Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73 the Full Court discussed relevant principles as follows: 226. Before analysing the contravening conduct and its interrelationship, we turn to the legal principles applicable to our analysis. In determining the appropriate penalty for a multiplicity of civil penalty contraventions, courts have had regard to two related principles that originate in the criminal law: the "course of conduct" or "one transaction" principle and the "totality" principle. They are not rules, but principles or tools to assist the Court in arriving at an appropriate penalty. 227. We make this preliminary observation. It is not appropriate or permissible to treat multiple contraventions as just one contravention for the purposes of determining the maximum limit dictated by the relevant legislation. We do not understand the contrary to be decided by the Full Court in CFMEU v Williams [2009] FCAFC 171; 262 ALR 417 (Moore, Middleton and Gordon JJ). In support of the contrary position, Yazaki relied upon the statement of the Full Court in Williams at [31] as follows: In the present case, it is appropriate to take the single course of conduct into account by imposing separate fines for the two offences which when aggregated would represent a single penalty appropriate to punish the single course of conduct concerned. Fixing an amount of fines that when taken together represent a single penalty appropriate to punish the one course of continuing conduct begins from the premise that the maximum penalty for all of the contravening conduct that comprises a single transaction, but constitutes two separate offences, is to be treated, in effect, as $110,000 for the Union and $22,000 for Mr Mates: cf Mornington at [18] (per Gyles J) and at [47]-[49] (per Stone and Buchanan JJ). 228. This statement was made in the context of the Full Court re-exercising the sentencing discretion and based upon the acceptance (on the facts before the Full Court) that there was effectively one activity or one offence (see [15] and [25]), adopting the approach taken in Mornington Inn Pty Ltd v Jordon [2008] FCAFC 70; 168 FCR 383. 229. The Full Court was not saying that as a matter of law or principle, in applying the course of conduct tool of analysis, it was appropriate or permissible to treat multiple contraventions as just one contravention for the purposes of determining the maximum limit to consider as a yardstick in reaching the appropriate penalty. 230. At [37] of the relief judgment the primary judge recorded by reference to [31] of Williams that the application of the course of conduct "tool of analysis" did "not mean that a number of contraventions become one contravention, but rather, where it is appropriate to apply the approach, a number of contraventions may be treated as if they attract one penalty. But, with respect, to treat a number of contraventions as subject to one maximum penalty (as we think his Honour did here) is to treat them, impermissibly, as one contravention. 231. As observed recently by Beach J in Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd trading as Bet365 (No 2) [2016] FCA 698 at [24]- [25]: ... the "course of conduct" principle does not have paramountcy in the process of assessing an appropriate penalty. It cannot of itself operate as a de facto limit on the penalty to be imposed for contraventions of the ACL. Further, its application and utility must be tailored to the circumstances. In some cases, the contravening conduct may involve many acts of contravention that affect a very large number of consumers and a large monetary value of commerce, but the conduct might be characterised as involving a single course of conduct. Contrastingly, in other cases, there may be a small number of contraventions, affecting few consumers and having small commercial significance, but the conduct might be characterised as involving several separate courses of conduct. It might be anomalous to apply the concept to the former scenario, yet be precluded from applying it to the latter scenario. The "course of conduct" principle cannot unduly fetter the proper application of s 224. 232. This statement was approved by the Full Court in Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 at [141] per Jagot, Yates and Bromwich JJ and in Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2017] FCAFC 159 at [425] and [426] per Middleton, Beach and Moshinsky JJ. 233. Further, in applying the course of conduct principle the statutory context in which the contraventions occurred must be considered. For instance, the Act contains no equivalent of s 557 of the Fair Work Act 2009 (Cth). In Cement, the Full Court made the following observations: 431 We consider that the course of conduct principle must be informed by the particular legislative provisions relevant to these proceedings. In particular, we consider that weight must be given to the fact that the legislature has deliberately and explicitly created separate contraventions for each of the making of, and giving effect to, a contract, arrangement or understanding that restricts dealings or affects competition: ss 45(2)(a) and 45(2)(b). 432 This statutory structure is relevant because it will often be the case that the making of, and giving effect to, a contract, arrangement or understanding will involve overlapping or homogenous conduct. The Court should be wary that it does not undermine this explicit distinction by applying the course of conduct principle too liberally in such circumstances. 234. The "course of conduct" or "one transaction" principle means that consideration should be given to whether the contraventions arise out of the same course of conduct or the one transaction, to determine whether it is appropriate that a "concurrent" or single penalty should be imposed for the contraventions. The principle was explained by Middleton and Gordon JJ in Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 194 IR 461 at [39]: 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. (Emphasis omitted.) 235. As Middleton and Gordon JJ further explained in Cahill, even if the contraventions are properly characterised as arising from a single course of conduct, a judge is not obliged to apply the principle if the resulting penalty fails to reflect the seriousness of the contraventions. 236. The course of conduct principle has some overlap with the totality principle, at least to the extent that the aim is to avoid a penalty being imposed which is not proportionate with the offending conduct: see Mill v The Queen [1988] HCA 70; 166 CLR 59 at 63. 237. We do not need to discuss further the totality principle, or other principles to be applied in the process of imposing a civil penalty under s 76, other than to observe that proper weight must be given to the statutory maximum (it being referrable to the most serious kind of contravention), and that there is little utility in reference to other cases decided at a different time, in different circumstances and with different facts. In this latter connection, Yazaki referred to a number of cases said to give some guidance as to the appropriate penalty to impose…These cases all involved an "agreed penalty" submitted by the parties, and involved different circumstances and facts. It is not necessary to give any particular attention to any of the cases referred to by Yazaki for the purposes of this appeal. 106 Yazaki has been the subject of discussion in subsequent decisions. As Rangiah J observed in Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman [2023] FCA 72 at [139] : … even if the contraventions are properly characterised as arising from a single course of conduct, a judge is not obliged to apply the principle if the resulting penalty fails to reflect the seriousness of the contraventions 107 The principle of totality was summarised in the 180 Brisbane Construction Case as follows: [102] The totality principle operates as a final check to ensure that the overall penalty is appropriate for the conduct in question, and not excessive. The Full Court explained the principle in the following terms in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC 113: 116. The totality principle, like the course of conduct principle, has its origins in criminal sentencing. The totality principle was described in the following terms in the frequently cited passage from the judgment of the High Court in Mill v R [1988] HCA 70; (1988) 166 CLR 59 at 62 -63 : The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (omitting references): The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong [']; 'when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'. See also Ruby, Sentencing, 3rd ed. (1987), pp. 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred. 117 The totality principle is sometimes confused or conflated with the course of conduct principle. That is perhaps not surprising because application of the totality principle may again result in a court adjusting what would otherwise have been consecutive or cumulative sentences to sentences that are wholly or partially concurrent. The proper approach, however, is to first consider the course of conduct principle and determine whether the sentences should be consecutive, or wholly or partly concurrent. Once that is done, the Court should then review the aggregate sentence to ensure that it is just and appropriate. That may require a further adjustment of the sentences: either by ordering further concurrency or, if appropriate, lowering the individual sentences below what would otherwise be appropriate. 108 The conduct in question occurred essentially over the night of 23 July 2018 and morning of 24 July 2018. In relation to Mr Hynes, the same could be said but with the addition of further conduct on the evening of 24 July 2018. 109 I have also already observed that the conduct in question of the Officials could properly be characterised as being at the lower to mid-range of seriousness. To that extent, and as discussed in Yazaki, I am not satisfied that a penalty for a course of conduct would be inadequate to properly act as a deterrent to the individual respondents for their conduct. 110 In my view a single penalty for the Officials except for Mr Hynes would be appropriate. Mr Hynes' first two contraventions over the night of 23 July 2018 and morning of 24 July 2018 should properly be treated as a course of conduct, with a single penalty imposed, and an additional penalty for his separate contravention on the evening of 24 July 2018. 111 I consider that it is appropriate to take the same approach in relation to the contraventions admitted by the CFMMEU, in that a total of four penalties be imposed in respect of each of the seven agreed contraventions. 112 In relation to the first respondent, Mr Albert, in respect of his contraventions over the night of 23 July 2018 and morning of 24 July 2018, I consider it appropriate that a total penalty of $7,000.00 be imposed. 113 In relation to the second respondent, Mr Hynes, I consider it appropriate that a penalty of $7,000.00 be imposed in total for his first two contraventions, and a penalty of $5,000.00 be imposed for his third contravention (totalling $12,000.00 in penalties). 114 In relation to the third respondent, Mr Ravbar, in respect of his contraventions over the night of 23 July 2018 and morning of 24 July 2018, I consider it appropriate that a total penalty of $7,000.00 be imposed. 115 In relation to the fourth respondent, the CFMMEU, I consider it appropriate that a penalty of $22,000.00 be imposed for each of : Mr Albert's contraventions over the night of 23 July 2018 and morning of 24 July 2018; Mr Hynes' contraventions over the night of 23 July 2018 and morning of 24 July 2018; Mr Hynes' contravention on the evening of 24 July 2018; and Mr Ravbar's contraventions over the night of 23 July 2018 and morning of 24 July 2018. 116 It follows that the total penalties to be imposed on the CFMMEU are $88,000.00.

[18]

Personal payment orders 117 The applicant has sought that personal payment orders be made against Mr Hynes and Mr Ravbar. 118 The purpose behind personal payment orders was considered by the Full Court in the Non-Indemnification Personal Payment Case at [40]: [40] The Union acts through its officials, of whom Mr Myles was, and is, one. The penalty against the individual must be a burden or have a sting to be a deterrent. The history of contravening by the Union, all undertaken through its officials, reflects a willingness to contravene the Act and to pay the penalties as a cost of its approach to industrial relations. Mr Myles has a history of significant contravention. A personal payment order of the kind to which we will come will bring home to him, and others in his position, that he, and they, cannot act in contravention of the Act knowing that Union funds will always bale him, or them, out. 119 The principles of general and specific deterrence are of utmost relevance to the imposition of personal payment order: see also Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Botany Cranes Case) (No 4) [2021] FCA 525 at [23] - [24]. The decision to impose a personal payment order is a discretionary one; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 at 195 [162]; [2018] HCA 3 at [115]; see also The 180 Brisbane Construction Case at [105]. 120 I am satisfied that it is appropriate in this matter to make personal payment orders against Mr Hynes and Mr Ravbar for the following reasons: They both have prior contraventions of s 500 of the Fair Work Act; I understand that at the time of the contraventions they both held senior positions at the CFMMEU; That they ceased to hold an entry permit does not in and of itself negate the need for specific deterrence in circumstances where they are at liberty to apply for an entry permit at a future point in time; That Mr Hynes is no longer employed by the CFMMEU (but rather the CFMEUQ) does not negate that need for deterrence; and Their conduct was deliberate.

Fair Work Ombudsman v Albert

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