CTHFCA

Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union

[2024] FCA 655

Federal Court of Australia|2024-06-21|Before: Snaden J

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Court

Federal Court of Australia

Decision date

2024-06-21

Before

Snaden J

Source

Original judgment source is linked above.

Judgment (19 paragraphs)

[1]

Background Facts 12 The circumstances constituting the contraventions just adverted to (hereafter, the "Admitted Contraventions") are contained within the affidavit material and the pleadings (and, more specifically, the wholesale admissions offered by the respondents therein). Save insofar as I identify matters that were the subject of dispute as between the parties, I should be understood by the summary that follows to have made findings consistent with what is set out. 13 Mr Tzimas has been employed by the CFMEU as an organiser since August 2017. His evidence was that he is particularly passionate about workplace safety. To that end, he deposed in his affidavit as follows, namely: I feel very strongly about work health and safety, partly because of my own experiences of safety incidents. One of the reasons I become an organiser was because I wanted to be able to contribute to improving safety standards in the construction industry. 14 Mr McCrudden has been employed by the CFMEU as an organiser since March 2018. He is primarily responsible for representing the interests of CFMEU members who are employed in the civil construction industry. Like Mr Tzimas, Mr McCrudden also expressed a heightened passion for workplace safety. He deposed in his affidavit as follows, namely: [My time in the construction industry has] made me appreciate the important role the CFMEU plays in ensuring that the construction industry is as safe as it can be for workers. In my view, the CFMEU's role is and has been central to making sure that workers are able to return home to their families after a day's work given that construction is a high-risk industry and there are always commercial pressures to cut corners and skimp on safety to get the job done. 15 Mr Harris has been employed by the CFMEU as an organiser since March 2019. An aspect of his employment was said to be ensuring that worksites are safe and compliant with health and safety requirements. His affidavit read, in part: Without the CFMEU I believe the construction industry would be very unsafe and exploitative. If management could pursue a profit driven agenda without a voice for the workers, injuries and deaths would occur. 16 I pause to note that none of the passages just replicated was the subject of objection. Plainly, each is of limited evidential assistance insofar as concerns the court's present task; but I accept, as I was invited to - indeed, there is no contest - that Mr Tzimas, Mr McCrudden and Mr Harris hold the views to which they each deposed. 17 Mr Tzimas, Mr McCrudden and Mr Harris were all, at relevant times, permit holders (within the meaning given to that phrase by the FW Act), and each was an authorised representative of a registered employee organisation (namely the CFMEU) for the purposes of the Occupational Health and Safety Act 2004 (Vic) (hereafter, the "OHS Act"). 18 With those introductory facts stated, it is convenient to address the two incidents upon which the present matter focuses.

[2]

The events of 18 November 2020 19 On 18 November 2020, Mr Tzimas and Mr McCrudden entered a part of the Project site located near the Bowen Parkway, in Waterways, Victoria. They were apparently anxious about what they perceived to be a number of potential safety concerns. There is no dispute that, whilst at that site, each was exercising a right of entry in accordance with pt 3-4 of the FW Act. It is agreed between the parties that Mr Tzimas and Mr McCrudden arrived at the site between 8:00am and 8:20am. Upon arrival, each produced his entry permit and issued a notice of suspected contravention pursuant to the OHS Act. Those notices were provided to the General Superintendent of the site, Mr Daryl Hill. 20 While at the Bowen Parkway site, Mr Tzimas and Mr McCrudden had a discussion with Mr Hill about the distance that workers had to walk in the heat to and from their work area. Mr McCrudden was concerned about the adequacy of an emergency plan; specifically, that it did not adequately cover scenarios in which workers might need to be rescued, especially from elevated platforms. Mr Tzimas was similarly concerned about how workers might be extracted from certain concrete columns in the event of an emergency. 21 Additionally, Mr McCrudden was concerned about a generator that was or appeared to be attached to a metal shed that, in the event of a fault, could potentially be electrified; and also about some residual-current devices whose "monthly tags" had expired some two days earlier. 22 Following their discussion at the Bowen Parkway compound, Mr Tzimas, Mr McCrudden and Mr Hill visited a different area of the Project located near Springvale Road. There, Mr Tzimas became concerned about cracks in some beams that supported an undercover walkway, about the method used to attach the undercover walkway to metal sheds, about the use of a material called "CT" on pathways that might not have been properly sealed (and that might potentially have exposed workers to risks of developing silicosis), about a lack of readily accessible drinking water, and about a lack of readily accessible sunscreen. 23 After discussing those issues with Mr Hill and various other managers at the site, Mr Tzimas asked to see - and was provided with - the Safety Data Sheet for the "CT". Mr Tzimas formed the view that the Safety Data Sheet was not being complied with. He and Mr McCrudden asked a health and safety manager at the site, Mr Martin Shanley, to host a "toolbox" meeting between management and workers to discuss issues of safety. Some time after 11:00am, Mr Tzimas and Mr McCrudden discussed with another health and safety manager, Ms Canatta, the safety risks in relation to potential silica dust from the "CT". Mr Hill and a superintendent, Mr Shane Perry, apparently agreed to address all of the raised concerns. 24 Ms Canatta, however, appeared perhaps to be less receptive to the catalogue of concerns that Mr Tzimas and Mr McCrudden had raised. She insisted that the "CT dust" posed no risk to workers. According to Mr Tzimas, she maintained that they would only be at risk if they came to be "…lying on the ground licking the road". 25 Mr Tzimas did not react well to Ms Canatta's observation. He responded by saying to Mr Shanley and Ms Canatta, "you're pathetic" and "you're a disgrace" (hereafter, the "Tzimas Statements"). 26 Mr McCrudden deposed that Mr Shanley and Ms Canatta had said that work should continue while the safety issues that he and Mr Tzimas had raised with them were addressed, and that he had become frustrated because, in his view, "…workers were at imminent risk of serious injury". His frustrations appear to have gotten the better of him. He admits that he said to them, "you're fucked this time" (hereafter, the "McCrudden Statement") - he deposes that he did so because he thought that the health and safety management personnel could face serious consequences in the event that someone was injured (or worse). 27 According to the admitted aspects of the further amended statement of claim, the Tzimas Statements and the McCrudden Statement each occurred between 11:00am and 2:00pm - that is, each of the statements was made during the course of a lengthy visit to the Project sites. 28 For the sake of completeness, it might be observed that a safety meeting was later conducted with the workers who were present. Possibly as a result of the shutting down of the generator, there was, by then, no longer any water available for the toilets. The workers were sent home for the day, and Mr Tzimas and Mr McCrudden left the Project.

[3]

The events of 2 December 2020 29 On 2 December 2020, Mr Harris - on instruction from Mr McCrudden - attended at a part of the Project located near Woodlands Drive, Braeside. He did so in order to satisfy himself as to some safety concerns that he had about piling and excavation works that were being conducted there. Upon arrival, Mr Harris also became concerned about an apparent lack of flagging and bollards around a road barrier. 30 After arriving at the Woodlands Drive compound, Mr Harris produced his entry permit to a health and safety manager, and provided to the superintendent, Mr Brendan Winden, a notice of suspected contravention under the OHS Act. There is no dispute that, whilst there, Mr Harris was exercising a right of entry in accordance with pt 3-4 of the FW Act. Mr Harris discussed safety issues with a supervisor, Mr Nathan Gay, until after midday, at which point he went to an exclusion zone in the Woodlands Drive compound where a sub-contractor was engaged to operate cranes, piling machinery and a concrete pump. It was at that location that Mr Harris became concerned about drivers arriving and proceeding into the site without first reporting to the Project office and undergoing an induction. 31 Mr Harris left the Woodlands Drive compound; but, shortly thereafter, re-entered with a new notice of suspected contravention. He thereafter approached two concrete trucks and asked the drivers to produce certain things, including COVID-19 management plans and hygienic wipes. Neither did (or could do) so. Mr Harris thereupon stood in front of or around the trucks, so as to impede their safe progression onto the site. He refused requests to move to allow the trucks to enter because, he deposed, he "…thought that they had failed to comply with important safety requirements and [he] wanted to continue to investigate". There is a dispute between the parties as to whether the concrete in the two concrete trucks perished and could not be used; but it is agreed that the trucks left without delivering their concrete. 32 A third concrete truck arrived thereafter. Mr Harris again positioned himself in front of it so that it could not safely proceed to deliver its load. He did so, he said, because he was concerned that it should not enter into the site in the absence of a traffic controller. He impeded it for approximately 15 to 20 minutes, after which a traffic controller arrived and he moved out of the way. Again, there is a dispute as to whether any of the concrete in that truck perished. In any event, it proceeded to where it needed to be and Mr Harris thereafter left the site. 33 I shall refer to Mr Harris's blocking of the three concrete trucks as the "Harris Conduct". 34 Before concluding, I should say something about the inferences that the FWO invites the court to draw about concrete having been spoilt because of the delays occasioned by Mr Harris's conduct. In the absence of any evidence as to what happened with it (other than that some of it was not delivered as planned), that is not an inference that can properly be drawn. It is not possible to make any findings about what became of the concrete whose delivery Mr Harris impeded.

[5]

Legislative framework 37 Part 3-4 of the FW Act is entitled, "RIGHT OF ENTRY". It confers upon "permit holders" various rights to enter premises for various purposes. There is no dispute that each of Mr Tzimas, Mr McCrudden and Mr Harris was a permit holder at relevant times (although Mr Tzimas no longer is). 38 Division 3 regulates the exercise of "State or Territory OHS right[s]", which are rights conferred by a "State or Territory OHS law", which includes the OHS Act. Part 8 of the OHS Act defines what is meant by an "authorised representative of a registered employee organisation". It is uncontroversial that each of Mr Tzimas, Mr McCrudden and Mr Harris was such a person. Each possessed a right of entry conferred by the OHS Act, the exercise of which was regulated by the FW Act. 39 Sections 87, 89 and 90 of the OHS Act relevantly provide: 87 Entry powers of authorised representatives (1) This section applies if an authorised representative of a registered employee organisation reasonably suspects that a contravention of this Act or the regulations has occurred or is occurring at a place that is a workplace and any of the following paragraphs applies - (a) the suspected contravention relates to or affects work that is being carried out by one or more members of the registered employee organisation or relates to or affects any of those members; … (2) The authorised representative may enter the place, during working hours, for the purpose only of enquiring into the suspected contravention. … 89 Powers on entry (1) An authorised representative of a registered employee organisation who enters a place under section 87 may do any of the following but only to the extent that it is reasonable for the purpose of enquiring into the suspected contravention - (a) inspect any plant, substance or other thing at the place; (b) observe work carried on at the place; (ba) take photographs or measurements or make sketches or recordings at the place; (c) consult with one or more employees (with their consent) at the place who are members or are eligible to be members of the registered employee organisation; (d) consult with any employer at the place about anything relevant to the matter into which the representative is enquiring. … (3) If, while the authorised representative is at the place, an issue arises between the authorised representative and the employer who has, or a person who on behalf of the employer has, the management and control of the work at the place about the exercise of any of those powers, either of those persons may ask the Authority to arrange for an inspector to attend at the place to enquire into the issue. (4) The Authority must ensure that an inspector attends the place as soon as possible after the request is made and the inspector - (a) must as soon as possible enquire into the issue; and (b) may perform any of his or her functions or exercise any of his or her powers under this Act that the inspector considers reasonably necessary in the circumstances. 90 Limitations on exercise of powers … (2) Despite anything else in this Part but subject to subsection (3), an authorised representative of a registered employee organisation is not entitled to exercise a power under this Part in respect of a place, except with the consent of the employer who has, or a person who on behalf of the employer has, the management and control of the work, if the exercise of that power would cause any work at the place to cease. (3) Nothing in subsection (2) prevents an authorised representative who reasonably believes that there is an immediate and significant risk of serious injury or death to one or more employees from warning the employee or employees of that risk. … 40 The FW Act contains a number of provisions that regulate the manner in which permit holders must and must not exercise their rights of entry under pt 3-4. Amongst them is s 500, which provides (and provided) as follows: 500 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. … 41 Section 500 is a "civil remedy provision": FW Act, s 539(1). Part 4-1 of the FW Act confers upon this court power to make any order that it considers appropriate in respect of a person who contravenes such a provision: FW Act, s 545(1). That power extends to the imposition of pecuniary penalties of up to (relevantly for present purposes) $13,320.00 for natural persons and $66,600.00 for bodies corporate: FW Act, s 546(2). 42 Section 550 of the FW Act serves to extend liability for contraventions of civil remedy provisions to those who are "involved in" their commission by others. It provides (and provided) as follows: 550 Involvement in contravention treated in same way as actual contravention (1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision. Note: If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person's contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)). (2) A person is involved in a contravention of a civil remedy provision if, and only if, the person: (a) has aided, abetted, counselled or procured the contravention; or (b) has induced the contravention, whether by threats or promises or otherwise; or (c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or (d) has conspired with others to effect the contravention. 43 Section 793 of the FW Act is concerned with the attribution to bodies corporate of conduct and states of mind engaged in by their human agents. The section relevantly provides as follows, namely: 793 Liability of bodies corporate Conduct of a body corporate (1) Any conduct engaged in on behalf of a body corporate: (a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or … is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body. State of mind of a body corporate (2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show: (a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and (b) that the person had that state of mind. Meaning of state of mind (3) The state of mind of a person includes: (a) the knowledge, intention, opinion, belief or purpose of the person; and (b) the person's reasons for the intention, opinion, belief or purpose. …

[7]

Pecuniary penalties 48 When imposing pecuniary penalties under s 546 of the FW Act, account must be taken of the principles established by the High Court in Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 (hereafter, "Pattinson"). In Fair Work Ombudsman v Roach (The Melbourne Quarter Case) [2023] FCA 781, Wheelahan J, referring to Pattinson, summarised them as follows (at [13]): (1) The purpose of the civil penalty regime under the FW Act is primarily, if not solely, the promotion of the public interest in compliance with provisions of the Act by the deterrence of further contraventions of the Act. (2) Reflecting the text of s 546 of the FW Act, the Court's task is to determine what it considers to be an "appropriate" penalty in a particular case. A penalty should not be greater than is necessary to achieve the object of deterrence, and severity beyond that would be oppression. An appropriate penalty is one that strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case. (3) The assessment of an appropriate penalty may be informed by the factors listed by French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152-3 to the extent that those factors relate to deterrence. However, that list is not a rigid catalogue of matters for attention as if it were a legal checklist. Account of the factors listed by French J in CSR, such as an expression of genuine remorse, may moderate the penalty that is appropriate to protect the public interest by deterring future contraventions of the FW Act. (4) Some concepts familiar from criminal sentencing, such as totality, parity, and course of conduct may assist in the assessment of what may be considered reasonably necessary to deter further contraventions of the FW Act. (5) The maximum penalties provided for by the FW Act are not reserved for the worst cases. Rather, what is required is that there be some reasonable relationship between the theoretical maximum and the final penalty imposed viewed through the lens of achieving the deterrence which is the purpose of the FW Act civil penalty regime. (6) In some cases, the circumstances of the contravener may be more significant to the assessment of an appropriate penalty than the circumstances of contravention, because, all other things being equal, a greater financial incentive will be necessary to persuade a well-resourced contravener to abide by the law rather than to adhere to its preferred policy than will be necessary to persuade a poorly resourced contravener that its unlawful policy preference is not sustainable. 49 In fashioning a civil penalty to be imposed for contravention of a statutory injunction such as s 500 of the FW Act, the court is concerned solely to impose what is necessary in order to deter repetition of the conduct in respect of which its imposition is warranted: Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155 (hereafter, the "NIPP Case"), 167 [19] (Allsop CJ, White and O'Callaghan JJ), to which the High Court referred with apparent approval in Pattinson, 459-460 [16] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ); Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The 250 East Terrace Case) (2023) 299 FCR 334, 345-346 [22] (Charlesworth, Snaden and Raper JJ). Deterrence is both general and specific: a penalty must be set at a level sufficient to discourage contravening by both the wrongdoer against whom it is to be imposed and others who might otherwise be minded to engage in similar conduct. 50 In the NIPP Case (Allsop CJ, White and O'Callaghan JJ), the full court set the task in the following terms (at 167 [20]-[21]): 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. 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: Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; (2018) 260 FCR 68 at [71]. 51 The imposition of penalties at or approaching the maximum of what is statutorily authorised is not a course reserved for the worst cases of contravention: Pattinson, 457 [10] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). Instead, penalties must be set at levels that are reasonably necessary to deter further contraventions of a like kind: Pattinson, 457 [9] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). That endeavour involves the striking of a balance between deterrence and "oppressive severity": Pattinson, 468 [41] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). 52 Inherent in realising the sole objective to which its imposition is directed is a recognition that a civil penalty "…must be fixed with a view to ensuring that the penalty is not such as to be regarded by [the] offender or others as an acceptable cost of doing business": Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640, 659 [66] (French CJ, Crennan, Bell and Keane JJ); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458, 481 [101] (Dowsett and Rares JJ, North J dissenting - hereafter, the "Perth Airport Case"). 53 With those principles stated, it is appropriate to focus upon the considerations that should guide the court's assessment of penalties in this matter.

[8]

The conduct of Mr Tzimas 54 Mr Tzimas admits to having made the Tzimas Statements, namely "you're pathetic" and "you're a disgrace". They were made during the course of a three-hour period - although, obviously, in very short bursts. The FWO sought to emphasise that his conduct transpired in the context of a broad-ranging discussion about topics that extended beyond his initial notice of suspected contravention. That was said to serve as relevant context that should inform the court's assessment of Mr Tzimas's wrongdoing: that the court should be conscious that, when he said what he said, Mr Tzimas had arrogantly assumed unto himself powers that were not conferred upon him by the OHS Act and was carrying on as though engaged in some official commission of enquiry into the safety practices in place at the Project. 55 I do not consider that much turns on any of that. It is the case that the right of entry that Mr Tzimas exercised on 18 November 2020 was one that was limited (relevantly) to inspection, observation and consultation: OHS Act, s 89(1). As Mr Tzimas may or may not have appreciated, it did not confer upon him some broader coercive power of investigation; it did not clothe him with authority to require the provision of information or submission to his demands, legitimate or otherwise. Perhaps he conducted himself on the mistaken assumption that it did; and perhaps the management representatives with whom he interacted indulged that misunderstanding more than they needed to. But how that might translate into something that should inform the court's assessment of the seriousness of his contravening conduct is not apparent. 56 In this case, although the context is not irrelevant, it is what Mr Tzimas said (rather than did) that is alleged to have been "improper" within the meaning of s 500 of the FW Act. Plainly - and as he properly concedes - Mr Tzimas's conduct was needlessly obnoxious and rude. It was relevantly improper. But I do not consider that there is much about the context that serves as an aggravating factor that should inform the court's assessment of the nature or seriousness or gravity of what he did. 57 Mr Tzimas says, in mitigation, that he said what he said by way of impulsive reaction to what he felt was Ms Canatta's "flippant" remark about dust, and that his reaction must be understood in that context, having regard to his heightened commitment to workplace safety. It is noted that some of the safety concerns that he and Mr McCrudden had raised were later addressed; although it does not appear that concerns about the "CT" were amongst them. 58 Again, I don't regard that as particularly instructive insofar as concerns the need to assess the seriousness or gravity of Mr Tzimas's conduct. Nothing about his interaction with Ms Canatta seems especially significant. It is plain that Mr Tzimas and Mr McCrudden raised some issues (consistently with the legitimate purpose for which they were in attendance at the site), and that Ms Canatta expressed a view about the significance of what they had raised. It seems fair to suggest that she regarded as without merit the concerns that had been raised about dust and she communicated as much in a way that left no doubt about her scepticism; but it is not clear that she was wrong, let alone that her response could properly be impugned as "flippant" (or, as counsel put it, "preposterous" and apt to trivialise a serious concern). 59 There is, then, no basis upon which the court might properly characterise Ms Canatta's response in a way that should inform the court's assessment of the nature or seriousness or gravity of Mr Tzimas's conduct. I accept that Mr Tzimas thought that her response was "flippant"; but, for present purposes, that works as much against him as for him. He was, as has been noted, at pains to point out how passionately he feels about matters of workplace safety, so it stands to reason that he might regard with some concern any reaction from management not reflective of his own views on that subject (and perhaps more so one that was communicated as unambiguously as Ms Canatta's). That may well suggest that, relative to others, he might be more, rather than less, prone to react with enthusiasm when his views are challenged. I will fashion a penalty in this case conscious of the circumstances within which Mr Tzimas came to say what he said; but I do not consider that there is much about the interactions that he had on 18 November 2020 that should inform my assessment of the nature, seriousness or gravity of his conduct. 60 Ultimately, Mr Tzimas's conduct is properly described as obnoxious and offensive; but it did not relevantly extend beyond the regrettable uttering of words. I am satisfied that Mr Tzimas's conduct - at least when looked at in isolation from other factors, including his history of contravening conduct - was at a level of seriousness properly assessed in the low-to-mid range.

[9]

The conduct of Mr McCrudden 61 Mr McCrudden admitted to having made the McCrudden Statement, namely "you're fucked this time". Again, that the comment was made some hours after his arrival at the site is of no moment. The conduct was self-evidently improper within the meaning of s 500 of the FW Act. It was, if nothing else, needlessly disrespectful, obnoxious and rude. 62 While the language used by Mr McCrudden was stronger than that of Mr Tzimas - and could potentially have been construed as a threat - the conduct itself was similarly minor, in that it was limited to the regrettable expression of words. Plainly, I do not mean by that observation to excuse anything. When exercising rights in accordance with pt 3-4 of the FW Act, permit holders are required to act in a manner that meets a standard of conduct that can reasonably be expected of those who occupy positions of responsibility: Director of the Fair Work Building Industry Inspectorate v Bragdon (2015) 147 ALD 373, 394 [97] (Flick J), referred to with apparent approval in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union and Another (Castlemaine Police Station Case) (2018) 258 FCR 158, 166 [40] (Dowsett, Tracey, and Charlesworth JJ). Nonetheless, it is to be borne firmly in mind that Mr McCrudden's conduct does not extend beyond what he said and how he said it. 63 Mr McCrudden may well have felt frustrated because he thought that workers were at imminent risk of serious injury and that management did not seem to him to be taking his concerns seriously. He may have felt frustrated that he could not persuade Ms Cannata and Mr Stanley to agree with his view. None of that, however, contextualises anything. The court is not asked (much less is it able) to rule on whether or not the concerns that Mr McCrudden raised were legitimate concerns that did, in fact, betray some imminent risk as he appears to have thought (and that Ms Canatta and Mr Stanley appear to have refuted). As with Mr Tzimas's conduct, I will fashion a penalty that is appropriate for Mr McCrudden's conduct conscious of the circumstances in which he came to say what he said; but I do not consider that there is much about the interactions that he had on 18 November 2020 that should inform the court's assessment of the nature, seriousness or gravity of his conduct. 64 Mr McCrudden's conduct - howsoever petulant, obnoxious and regrettable - was also at a level of seriousness that is properly assessed as being in the low-to-mid range.

[10]

The conduct of Mr Harris 65 Mr Harris's conduct was, objectively, far more serious than that of either Mr Tzimas or Mr McCrudden. On any view, blocking trucks from proceeding onto a site is inherently aggressive. It is potentially dangerous. That Mr Harris did what he did in part because the drivers were unable or unwilling to provide to him material that he was not authorised by statute to require is also instructive, as is the frankly dubious pretence from which he has not resiled: namely that there was some immediate safety risk associated with their approach to the COVID-19 pandemic (including that they did not have hygienic wipes to hand). Mr Harris's conduct involved an arrogant and provocative assumption of a power that he could not reasonably have thought that he possessed, and that he nonetheless purported to exercise at a time that he surely recognised was one of commercial vulnerability (namely at or around the point of a concrete pour). 66 Again, Mr Harris was keen to impress upon the court that he cares very deeply about matters of workplace safety; but, again, that does not seem to me to bear much upon my assessment of the nature, seriousness or gravity of his conduct. It is, to say the least, difficult to reconcile Mr Harris's proclaimed commitment to workplace safety with his having himself created (at least potentially) needless safety hazards by standing in front of active trucks. In any event, as with Mr Tzimas and Mr McCrudden, Mr Harris's passion for matters of safety would seem to work as much (if not more so) against him than in his favour, in that it rather suggests that more might be required in the way of "oppressive severity" to persuade him that he ought not, in future, genuflect to the blockading of commercial activity when others don't agree with him. 67 Regardless, I consider Mr Harris's conduct as objectively far more serious than that of Mr Tzimas and Mr McCrudden. Whereas the latter two engaged in conduct that was merely unpleasant, Mr Harris's conduct was disruptive. On any view, it was wildly improper. I consider that it is properly characterised as being at a mid-to-high level of seriousness.

[12]

Prior contraventions 70 It is now well accepted that a wrongdoer's history of engaging in conduct in contravention of a civil remedy provision is a circumstance that should inform the court's assessment as to the level of "oppressive severity" that a penalty should visit in order to deter repetition of the conduct in respect of which it is to be imposed. That, in turn, may warrant the imposition of a more significant penalty, including one that, looked at in isolation, might be disproportionate to the nature, gravity or seriousness of the instant conduct. 71 At the time that he made the Tzimas Statements, Mr Tzimas had previously engaged in conduct that was later found or accepted to be in contravention of s 500 of the FW Act: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Beams Lift Case) [2021] FCA 1414 (Kerr J). Additionally, he previously engaged in conduct later found to be in contravention of s 46 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth): Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining, Energy Union (The U-Vet School Case) [2022] FCA 1068 (O'Callaghan J). 72 Subsequent to the Tzimas Statements, Mr Tzimas has: (1) committed two further contraventions of s 500 of the FW Act, each involving acts of physical aggression - Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2023] FedCFamC2G 1060 (Judge Mansini); (2) committed contraventions of ss 499 and 500 of the FW Act by refusing a reasonable request to comply with an occupational health and safety requirement, and by entering and failing to leave a plant operation zone when reasonably requested to do so - Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union (North East Link Project Case) [2024] FedCFamC2G 396 (Judge Champion); and (3) as of 19 December 2023, ceased to be a permit holder. 73 But for the fact that he is no longer a permit holder, it would have been apparent from his history that an appropriate penalty for Mr Tzimas would require more in the form of "oppressive severity" than might otherwise have been warranted. The fact that he no longer possesses rights of entry under pt 3-4 of the FW Act, however, is significant: the needs of specific deterrence loom less large in his case than they otherwise would have. 74 The penalty to be imposed in respect of Mr Tzimas's conduct should, nonetheless, take account of the need to deter others - including others with histories similar to his - from emulating it. The more recalcitrant the wrongdoer, the more it is legitimate for the court to visit greater "oppressive severity" in the service of general deterrence, notwithstanding the existence of other circumstances by which the requirements of specific deterrence are diminished. 75 Mr McCrudden has also fallen foul of the FW Act since making the McCrudden Statement. On 25 June 2021, he engaged in conduct in contravention of s 340(1)(b) of the FW Act, specifically by threatening another person with professional repercussions in an attempt to prevent that person from exercising workplace rights: Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union [2024] FedCFamC2G 235 (Judge Mansini). To date, that is his only recorded transgression against the FW Act. 76 Mr Harris has yet to be found to have engaged in any conduct in breach of industrial laws. It was said that that was "a matter to his credit" and that his conduct should be understood as "an uncharacteristic aberration". It might be doubted that anybody should be entitled to "credit" for having not done what the law prohibits them from doing; but, broadly, those propositions must be (and are) accepted. 77 Findings of contravention that post-date the conduct that is presently in focus are relevant insofar as they might be thought to shed light on the attitude of a wrongdoer; and are circumstances that are capable of informing the deterrent effect to which the setting of penalties must be directed: Civil Air Operations Officers' Association of Australia v Airservices Australia (No 2) [2022] FCA 1077, [55] (Snaden J); Temple v Powell (2008) 169 FCR 169, 188 [64] (Dowsett J). Nonetheless, they are not to be equated with prior contraventions that were found to amount as such before the instances of conduct that now fall to be considered. The respondents so submitted and correctly so. 78 The CFMEU has a well-documented record of non-compliance with industrial laws: Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 1462, [5]-[6] (Jessup J); Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1173, [29] (Jessup J); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458, 476-477 [83] (Dowsett and Rares JJ); Australian Building and Construction Commissioner v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) (No 2) [2017] FCA 367, [31] (Jessup J); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Werribee Shopping Centre Case) [2017] FCA 1235 (Tracey J), [28]; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case) (No 2) (2018) 358 ALR 725, 732-733, [41]-[45] (Tracey J). On any view, the CFMEU is properly to be described as a well-resourced, recidivist offender. Since 2010, it has been held to have contravened s 500 of the FW act more than 170 times in no fewer than 50 proceedings. Its record of contravening demonstrates a general disregard on its part of workplace laws: Pattinson, [21] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). 79 It was said, for the CFMEU, that its history should not bear materially upon the court's assessment of appropriate penalties to be imposed in the present case because the conduct attributed to it here was impulsive or, at any event, not reflective of some broader union objective. That submission is at odds with authority. The CFMEU's history of contravening industrial laws is relevant insofar as it is capable of informing what level of "oppressive severity" might be required to incentivise it to put a stop to the kind of conduct for which it now stands to be punished: Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The 250 East Terrace Case) (2023) 299 FCR 334, 354 [74] (Charlesworth, Snaden and Raper JJ). 80 Presently, specific deterrence assumes particular importance in fashioning a pecuniary penalty appropriate for the CFMEU's contraventions. Despite the efforts that have been made to educate officials about the limits of their rights of entry (more about which is said below), it remains apparent that the CFMEU requires more in the way of "oppressive severity" than might otherwise be hoped to dissuade further wrongdoing in its name.

[14]

Corrective behaviour 84 The respondents led evidence in the form of an affidavit affirmed on 29 February 2024 by Mr Brian Lacy AO. It attested to training that the CFMEU had engaged Mr Lacy to provide to its officials, including to Mr McCrudden and Mr Harris. Mr Tzimas's affidavit evidence likewise made clear that he, too, received similar training from Mr Lacy. That training concerned the nature and limits of the rights of entry conferred by pt 3-4 of the FW Act. 85 Mr Lacy is a barrister and a former presidential member of what is now the Fair Work Commission. He is well known to and well respected by those who have practiced in the field of industrial law over recent decades. His expertise undoubtedly extends to the nature and limits of the rights of entry conferred by part 3-4 of the FW Act. The FWO did not contend otherwise. 86 That the CFMEU commissioned Mr Lacy to provide training, and that Mr Tzimas, Mr McCrudden and Mr Harris agreed to undertake it, undoubtedly speaks in favour of each of them. This is not the first occasion in which the CFMEU has led evidence in a case of this kind regarding its efforts to educate its officials on the limits of their rights of entry: see eg, Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Monash Freeway Widening Case) (No 2) [2021] FCA 1101, [51] (Snaden J); and Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Titan Cranes Case) [2022] FCA 774 (Logan J). 87 Given that the steady flow of contravention proceedings against the CFMEU and its officials (including with respect to right of entry breaches) appears to have slowed rather than stopped, one might wonder whether the training that has been provided has been as successful as could have been hoped. That, though, is beside the point. The fact that the CFMEU and its permit holders have commissioned and undertaken the training that they have undoubtedly bespeaks an acceptance on their part of a problem and a willingness to rehabilitate. That, in turn, should inform the court's assessment of what might be necessary in the way of "oppressive severity" specifically to deter repetition of the conduct that is here in issue (although what is necessary generally to deter equivalent repetition remains a significant consideration that must guide the court's assessment of what penalties are appropriate). 88 The same may be said about the resilience training in which Mr Tzimas and Mr McCrudden partook (above, [35]). It is trite to observe that union officials with a high level of commitment to workplace safety are bound to get frustrated when their concerns are not met with equivalent fanaticism. Nonetheless, it is plainly important that they should deport themselves professionally, all the while accepting that they are not the arbiters of what is or is not safe. Other independent institutions that assume that task, unencumbered by potential conflicts of interest, whether real, perceived or otherwise. 89 That Mr Tzimas and Mr McCrudden were willing to undergo training designed to help them keep their emotions in check plainly reflects well on them. The CFMEU's willingness to organise it is similarly positive. In each case, it reflects an acceptance of something to be addressed, which in turn should inform the court's assessment of where the needs of specific deterrence might lie.

[17]

Course of conduct 96 The so-called "course of conduct" and "totality" principles are principles or tools that assist the court in arriving at an appropriate penalty. The court should take a single course of conduct into account by imposing separate pecuniary penalties for each of the contraventions that, when aggregated, represent a single penalty appropriate to punish the single course of conduct concerned: Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243, 294-295 [226]-[227] (Allsop CJ, Middleton and Robertson JJ) citing Construction, Forestry, Mining and Energy Union v Williams (2009) 262 ALR 417 (Moore, Middleton and Gordon JJ). The course of conduct principle recognises that care ought to be taken so that an offender is not punished more than once for what is essentially the same wrongdoing: Royer v Western Australia (2009) 197 A Crim R 319, 328 [22] (Owen JA, with whom Miller JA agreed in the result, Buss JA dissenting). In assessing what penalty or penalties are appropriate for the contraventions, a court may (but will not necessarily) conclude that a single penalty ought to be imposed for multiple contraventions arising out of a course of conduct: Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (The Hutchison Ports Appeal) [2019] FCAFC 69, [181] (Rangiah J, with whom Ross J agreed in the result, Flick J dissenting). 97 The CFMEU contends that, although it twice contravened s 500 of the FW Act on 18 November 2020, those contraventions are properly understood to have arisen from a single course of conduct and should not, therefore, be the subject of multiple penalties. 98 I reject that submission. The CFMEU's contraventions arose by process of legal fiction: from its having been deemed to have done what Mr Tzimas and Mr McCrudden did, and its having been deemed to possess the states of mind that they possessed when they engaged in their respective contraventions. I confess some doubt as to how that might suffice to clothe the CFMEU with accessorial liability for the contraventions of its officials; but there is binding appellate authority that says as much and I needn't explore that issue further. 99 Of greater significance now is the fact that each of the contraventions was relevantly distinct, in that each inhered in separate conduct committed at different times by different people in different (though, plainly, not wholly dissimilar) contexts. The CFMEU's conduct arises no more from a single course of conduct than did the conduct of each of Mr Tzimas and Mr McCrudden. 100 It is appropriate, though, for the court to fashion penalties that, in their totality, reflect the wrongdoing that is to sheet home to the CFMEU. Totality, rather than course of conduct, is the best way to make sure that what is imposed upon the CFMEU fairly reflects what is needed to deter future instances of like wrongdoing.

Parties

Applicant/Plaintiff:

Fair Work Ombudsman

Respondent/Defendant:

Construction, Forestry and Maritime Employees Union

Legislation Cited (3)

Building and Construction Industry (Improving Productivity) Act 2016(Cth)s 46

Fair Work Act 2009(Cth)ss 499, 500, 539, 545, 546, 550, 793

Occupational Health and Safety Act 2004(Vic)ss 87, 89, 90

Cases Cited (29)

Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The 250 East Terrace Case) (2023) 299 FCR 334 Construction, Forestry, Mining and Energy Union v Williams (2009) 262 ALR 417 Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 1462 Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1173 Director of the Fair Work Building Industry Inspectorate v Bragdon (2015) 147 ALD 373 Fair Work Ombudsman (formerly Australian Building and Construction Commissioner) v Construction, Forestry, Maritime, Mining and Energy Union (The Constitution Place Case) (No 2) [2023] FCA 13 Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union [2024] FedCFamC2G 235 Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union (North East Link Project Case) [2024] FedCFamC2G 396 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2023] FedCFamC2G 1060 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (The Hutchison Ports Appeal) [2019] FCAFC 69 Fair Work Ombudsman v PTES 928 Pty Ltd [2023] FCA 934 Fair Work Ombudsman v Roach (The Melbourne Quarter Case) [2023] FCA 781 Royer v Western Australia (2009) 197 A Crim R 319 Temple v Powell (2008) 169 FCR 169

(2017) 249 FCR 458

(2018) 258 FCR 158

(2017) 252 FCR 393

(2022) 274 CLR 450

(2004) 142 FCR 1

(2013) 250 CLR 640

(2018) 262 FCR 243

(2018) 264 FCR 155

(2020) 281 FCR 365

(2023) 299 FCR 334

(2009) 262 ALR 417

(2008) 169 FCR 169