Ground 1: Error in finding s 557(3) applied where the earlier contraventions arose out of the same course of conduct
24 The primary Judge held that the stoppages of work at the Sydney and Brisbane terminals involved one course of conduct committed by the CFMMEU and that by virtue of s 557(1), the multiple contraventions were required to be treated as a single contravention. Her Honour's conclusion involved the determination of a threshold question as to whether s 557(3) disentitled the CFMMEU to the benefit of s 557(1) because of the MUA's prior contraventions of s 417(1) of the FW Act.
25 It was common ground that pecuniary penalties had previously been imposed on the MUA for contravention of s 417(1): see Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232; DP World Sydney Limited v Maritime Union of Australia (No 2) [2014] FCA 596 and Chevron Australia Pty Ltd v Maritime Union of Australia (No 2) [2016] FCA 768. As observed by the primary Judge, the pecuniary penalties previously imposed on the MUA had nothing to do with the industrial action subject of the declarations in this case, they "concerned entirely unrelated conduct" ([2018] FCA 934 at [14]).
26 As I have mentioned, at first instance the FWO contended that s 557(3) disentitled the CFMMEU to the benefit of s 557(1) because it had previously had a civil penalty imposed upon it for a contravention of s 417(1). The primary Judge rejected the FWO's construction of s 557(3) and held, at [22] - [25] of the Penalty Judgment:
The key to the proper construction of the provision is that s 557(3) is an exception to s 557(1). It follows that it must be read as creating an exception for matters which would otherwise be subject to s 557(1); that is, matters which comprise a single and continuing course of conduct. The FWO's construction ignores this context and reads s 557(3) as if it extends to cases to which s 557(1) would not otherwise apply; that is, cases in which the respondent has been penalised under the same provision but for an unrelated course of conduct in the past. To read an exception or exclusion provision in such a manner is to decontextualize it, which is an impermissible approach to statutory construction.
In summary, by s 557(1) two or more contraventions of a civil remedy provision are taken to be a single contravention of that provision so long as the circumstances identified in s 557(1)(a) and (b) apply and the contraventions were in respect of the provisions identified in s 557(2). If the contravention is of a nominated provision, the requisite circumstances are that the contraventions are committed by the same person and arose out of a course of conduct by that person. Section 557(3), being an exception to s 557(1), does no more than exclude from s 557(1) cases which would otherwise be within the scope of that provision. Once this is recognised, it is apparent that the only cases which would otherwise be within s 557(1) are cases to which s 557(1) applies, being cases involving two or more contraventions as part of a course of conduct by the same person. Section 557(3) may apply to such cases if its terms are engaged. To read s 557(3) as the FWO proposes is to give the provision a freestanding operation, disconnected from ss 557(1). Nothing in the language or context supports such a reading.
The previous pecuniary penalties imposed on the MUA for contravention of s 417(1), as the FWO acknowledged, have nothing to do with the present case … Accordingly, ss 557(1) and (2) could not apply to the present contraventions and those past contraventions the subject of previously imposed pecuniary penalties. Section 557(3) thus has no work to do in the present case because it is concerned with cases in which a penalty has already been imposed for a contravention forming part of the same course of conduct by the same person. As there has been no pecuniary penalty imposed on the MUA for any contravention forming part of the same course of conduct as that in the present case, s 557(3) is not engaged.
The FWO submitted that this leaves s 557(3) with no work to do. Again, I disagree. Section 557(2) identifies a range of civil penalty provisions which are within the potential scope of s 557(1). It is not difficult to imagine cases in which there is a single course of conduct by the same person contravening a civil penalty provision which may continue after the imposition of a pecuniary penalty. In such a case, s 557(1) would otherwise apply but s 557(3) operates so that s 557(1) does not apply. This means that another contravention could be acknowledged and a further penalty imposed for the same course of conduct notwithstanding subsection (1). This prevents the contravener from continuing in an unlawful course of conduct with impunity following the initial imposition of a penalty. (Emphasis added)
27 The Appellant contends that the primary Judge erred in not applying s 557(3) to disentitle the CFMMEU of the benefit of s 557(1) on the basis of the MUA's prior contraventions of s 417(1). The Appellant submits that the primary Judge's construction of s 557(3) is not supported by the text and that s 557(3) uses temporal concepts in order to remove the benefit of s 557(1). The provision is said to comprise of two elements occurring at different points of time.
28 Ascertaining the legal meaning of a statutory provision necessarily begins with the ordinary grammatical meaning of the words used, having regard to their context and legislative purpose. Context includes the language of the FW Act as a whole, the existing state of the law, the mischief the provision was intended to remedy and any relevant legislative history (see Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at 47; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky) at [69]).
29 Section 15AA of the Acts Interpretation Act 1901 (Cth) requires that a construction that would promote the purpose or object of the FW Act is to be preferred to one that would not promote that purpose or object (noting that s 40A of the FW Act provides that the Acts Interpretation Act 1901, as in force at 25 June 2009, applies to the FW Act). The purpose or object of the FW Act is to be taken into account even if the meaning of a provision is clear. When the purpose or object is brought into account an alternative interpretation may become apparent. If one interpretation does not promote the object or purpose of the FW Act, and another does, the latter interpretation is to be preferred. Of course, s 15AA requires us to construe the FW Act, not to rewrite it, in the light of its purpose (Mills v Meeking (1990) 169 CLR 214 at 235 per Dawson J; R v L (1994) 49 FCR 534 at 538).
30 The plurality in SZTAL v Minister for Immigration and Border Protection (SZTAL) [2017] HCA 34 at [14] (Kiefel CJ, Nettle and Gordon JJ) succinctly described the contemporary approach to statutory construction (also see Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 223 at [76]-[86]):
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. (Footnotes omitted)
31 Turning then to the text of the statute, s 557 of the FW Act relevantly states:
557 - Course of conduct
(1) For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:
(a) the contraventions are committed by the same person; and
(b) the contraventions arose out of a course of conduct by the person.
(2) The civil remedy provisions are the following:
…
(j) subsection 417(1) (which deals with industrial action before the nominal expiry date of an enterprise agreement etc.);
…
(3) Subsection (1) does not apply to a contravention of a civil remedy provision that is committed by a person after a court has imposed a pecuniary penalty on the person for an earlier contravention of the provision.
32 Section 557 provides that for the purposes of Part 4-1 of the FW Act, where two or more contraventions by the same person of a civil remedy provision referred to in s 557(2) arose out of a single course of conduct by the person, they must be taken to be a single contravention. Section 417(1), which deals with industrial action before the nominal expiry date of an enterprise agreement (the contravention in the present case), is one of the civil remedy provisions referred to in s 557(2) (at s 557(2)(j)).
33 Section 417 of the FW Act relevantly states:
417 Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc.
No industrial action
(1) A person referred to in subsection (2) must not organise or engage in industrial action from the day on which:
(a) an enterprise agreement is approved by the FWC until its nominal expiry date has passed; or
(b) a workplace determination comes into operation until its nominal expiry date has passed;
whether or not the industrial action relates to a matter dealt with in the agreement or determination.
Note: This subsection is a civil remedy provision (see Part 4 1).
(2) The persons are:
(a) an employer, employee, or employee organisation, who is covered by the agreement or determination; or
(b) an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity.
34 Section 557(1) is properly characterised as a beneficial provision. A provision within an Act may be so characterised without the need to conclude that the Act is, as a whole, beneficial legislation (Nilant v Macchia (2000) 104 FCR 238).
35 As a general proposition, a beneficial provision is to be given a liberal construction rather than being construed in a narrow of pedantic manner (IW Applicant v The City of Perth (1997) 191 CLR 1 at [11]). The approach to the interpretation of beneficial provisions is subject to the qualification that the interpretation adopted "must be restrained within the confines of the actual language employed and what is fairly open on the words used" (Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 638. Also see Accident Insurance Mutual Ltd v Sullivan (1986) 7 NSWLR 65 at 68; Secretary, Department of Social Security v Knight (1996) 72 FCR 115 at 122; Commonwealth v Anti-Discrimination Tribunal (Tasmania) (2008) 169 FCR 85 at 118). As the majority (Gibbs CJ, Mason, Wilson and Dawson JJ) observed in Waugh v Kippen (1986) 160 CLR 156 at 164:
the court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended he should have…
36 If the words to be construed admit only one outcome then that is the meaning to be attributed to the words. However if more than one interpretation is available or there is uncertainty as to the meaning of the words, such that the construction of the legislation presents a choice, then a beneficial interpretation may be adopted.
37 I accept, as contended by the Appellant, that s 557(3) comprises two elements. The first element provides that s 557(3) operates as an exception to the operation of s 557(1). So much is clear from the expression "Subsection (1) does not apply to a contravention of a civil remedy provision that is committed by a person". The "contravention" referred to in this expression is the contravention of a civil remedy provision before the Court in respect of which penalties are sought to be imposed. In the current matter the relevant contraventions are the CFMMEU's contraventions of s 417(1) of the FW Act.
38 The second element specifies the nature of the exception to s 557(1); that is, s 557(1) does not apply "after a Court has imposed a pecuniary penalty on the person for an earlier contravention of the provision" (emphasis added). Two things may be said about the exception.
39 First, the reference to "the provision" is to the contravention of the same civil remedy provision that is before the Court; in the present matter, s 417(1). Thus, in the context of this case, s 557(3) is only enlivened if a Court has imposed a pecuniary penalty on the MUA for an earlier contravention of s 417(1).
40 Second, as contended by the Appellant, the use of the words "after" and "earlier contravention" create a temporal relationship between the contravention presently before the Court and the earlier contravention.
41 The issue in contention is her Honour's conclusion (Penalty Judgment at [24]) that:
s 557(3) … has no work to do in the present case because it is concerned with cases in which a penalty has already been imposed for a contravention forming part of the same course of conduct by the same person. As there has been no pecuniary penalty imposed on the MUA for any contravention forming part of the same course of conduct as that in the present case, s 557(3) is not engaged.
42 In essence, the primary Judge held that s 557(3) is directed at only disqualifying a person from having the benefit of s 557(1) (provided all requirements in s 557(1) are otherwise met) if the same course of conduct that is the subject of consideration has previously resulted in a penalty being imposed by the Court. In this respect, her Honour observed at [25]:
It is not difficult to imagine cases in which there is a single course of conduct by the same person contravening a civil penalty provision which may continue after the imposition of pecuniary penalty.
43 With respect, contrary to her Honour's observation, it seems to me that it would be a very unusual case where a person commenced a course of conduct in contravention of the FW Act, had a penalty imposed for that contravention, and continued to engage in the same course of conduct, resulting in further civil remedy proceedings. The fact that such an occurrence is unlikely tells against the construction of s 557(3) adopted by her Honour.
44 The primary Judge's construction focuses on a previous contravention in respect of the same "course of conduct" which is before the Court. A difficulty with that construction is that it requires importing or adding words to the end of s 557(3) which do not appear in the subsection, namely "where the earlier contravention arose out of the same course of conduct committed by the same person". As Lord Mersey, in an oft-cited passage from Thompson v Gould & Co [1910] AC 409 at 420, said "It is a strong thing to read into an Act of Parliament words that are not there, and in the absence of clear necessity it is the wrong thing to do" (cited with approval by Flick J in JJ Richards & Sons Pty Ltd v Fair Work Australia (2012) 201 FCR 297). With respect to the view taken by her Honour, I am not persuaded that there is the requisite necessity in the case of s 557(3).
45 Further, the use of the indefinite article in the expression "an earlier contravention" in s 557(3) indicates that the contravention does not have to have occurred in a particular context, such as a contravention arising from the same course of conduct. This also tells against the construction adopted by the primary Judge.
46 In my view a plain reading of the text compels the conclusion that in order to enliven the operation of s 557(3) the prior contravention must be of the same civil remedy provision and the Court's order imposing a penalty for that contravention must have occurred before the contraventions found in the present matter. Further, s 557(3) is not confined to cases in which the prior penalty has been imposed for a contravention forming part of the same course of conduct that is before the Court.
47 Of course, the literal meaning (or the ordinary grammatical meaning) of the words of a statutory provision may be displaced by the context and legislative purpose. As the majority observed in Project Blue Sky at [78] (also see Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 223 at [76]-[86]):
the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
48 The purpose of s 557(1) is to provide a degree of leniency in the imposition of a penalty by requiring the Court to treat multiple contraventions of certain civil remedy provisions (i.e. those referred to in s 557(2)) as a single contravention, if the contraventions are committed by the same person and arise out of the same course of conduct by that person. The operation of s 557(1) is subject to the exception in s 557(3).
49 It is appropriate to view the purpose of the exception in s 557(3) as being to provide a practical balance between competing public interests - namely the provision of leniency in the circumstances specified in s 557(1) and the need to deter non-compliance with civil remedy provisions. Such a characterisation is consistent with the object of the FW Act in s 3, namely "to provide a balanced framework for cooperative and productive workplace relations". Provisions such as s 557(3) are to be interpreted carefully in order not to destroy the balance between the competing public interests (see Chief Executive Officer of Customs v Adelaide Brighton Cement Ltd (2004) 139 FCR 147 at [17]).
50 If the scope of the exception in s 557(3) is confined in the manner adopted by the primary Judge then the circumstances in which leniency is afforded by s 557(1) will be correspondingly expanded. In my view such a construction would disturb the balance between the competing interests which is the very purpose of the provision. In particular, such a construction undermines the primary purpose of imposing a civil penalty, that is to deter the contravener and others from repeating the proscribed conduct (see Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 at [54]-[55] per French CJ, Kiefel, Bell, Nettle and Gordon JJ). The construction I have adopted is consistent with the legislative purpose.
51 As to the context, I note that the heading and subject matter of s 557 is directed at contraventions arising out of a course of conduct by the same person. But that context does compel the construction adopted by the primary Judge and nor does it provide the requisite necessity to import or add words to the end of s 557(3).
52 A further contextual consideration is that the construction adopted by the primary Judge is not consistent with other language used in the FW Act in dealing with similar concepts. In particular, s 556, which deals with civil double jeopardy, adopts a drafting style linking the civil remedy provision in question to the "conduct":
556 Civil double jeopardy
If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct. (Emphasis added)
53 A similar drafting style could have been adopted in respect of s 557(3), linking the previous contravention to the "course of conduct", but it was not.
54 Finally, the construction I have adopted is consistent with the obiter observations of Dowsett and Rares JJ in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53; (2017) 249 FCR 458 (Perth International Airport Case) at [88]:
In our opinion, s 557 did not cover the field and did not exclude the common law principle of taking into account, when imposing a penalty, whether the conduct complained of constituted a single course of conduct. However, s 557 provided a legislative indication that certain forms of concerted industrial action, such as multiple contraventions of ss 417(1), would be deemed, only in the case of a first contravention by the person, to be a single contravention. That contrasted with the legislative purpose of treating one contravention of s 348 differently from ones to which s 557 applied. The Parliament appears to have intended that multiple contraventions of s 348, in what, in other circumstances (such as those covered by s 557), might be treated as a course of conduct, would not necessarily attract any sentencing leniency.
55 In Australian Building and Construction Commissioner v Pauls [2017] FCA 843 (Pauls) Rangiah J said:
[20] Under s 557(1) and (3) of the FWA, two or more contraventions of s 417(1) are taken to constitute a single contravention if the contraventions arose out of a course of conduct by the person, provided that a Court has not previously imposed a pecuniary penalty on the person for an earlier contravention of that provision.
[21] The Commissioner does not allege that Pauls or Steele have previously contravened s 417 of the FWA, so s 557(1) is capable of applying to their conduct. The Commissioner's written submissions assert that Bland has had "previous involvement in similar proceedings", but do not allege that any pecuniary penalty has previously been imposed upon him for contravention of s 417. I therefore accept that s 557(1) is capable of applying to Bland's contravention of s 417. Pecuniary penalties have been imposed upon the CFMEU for contravention of s 417 on a number of previous occasions, so s 557(1) does not apply to its conduct.
56 I note that in Pauls the CFMEU did not advance a contrary submission about s 557(3).
57 Further, in Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 (Grouped Property Services) Katzmann J made the following observation (at [402]) regarding s 557:
Unless a court has previously imposed a pecuniary penalty on the person for an earlier contravention of the same civil remedy provision, two or more contraventions of certain civil remedy provisions are taken to constitute a single contravention if they are committed by the same person and arose out of a course of conduct by that person.
58 Neither the Perth International Airport Case nor Grouped Property Services make any reference to a requirement that the previously imposed pecuniary penalty arise out of the same course of conduct which is before the Court. In Pauls, as I have mentioned, the point was not contested.
59 For the reasons given the primary Judge erred in her construction of s 557(3). Before turning to the disposition of the appeal it is necessary to say something about the application of the construction of s 557(3) I have adopted in the circumstances in the present matter.
60 One of the reasons given by the primary Judge for the adoption of her construction of s 557(3) was that a consequence of adopting the Appellant's construction was that s 557(3) would constitute a form of "one strike" rule. At [13] of the Penalty Judgment her Honour said:
I do not accept that s 557(3) constitutes a form of "one strike" rule so that if a person has had a pecuniary penalty imposed on them for contravention of a provision, s 557(3) means that s 557(1) does not apply to any future contravention of the same provision by that person. In my view, this involves impermissibly construing s 557(3) literally, rather than purposively, and in isolation from its context. When read purposively and in context, it is reasonably clear that s 557(3) is concerned with pecuniary penalties that have previously been imposed on the same person in respect of the same course of conduct. In the present case, the pecuniary penalties previously imposed on the MUA had nothing to do with the industrial action the subject of the declarations in this case. They concerned entirely unrelated conduct.
61 It seems to me that the extent to which s 557(3) operates as a "one strike" rule, and indeed the application of s 557(3) in the present case, depends on the meaning given to the expression "a contravention of a civil remedy provision" in s 557(3). I note that an almost identical expression is used in s 557(1).
62 The proper construction of the expression "contraventions of a civil remedy provision" in s 557(1) was considered by the Full Court in Rocky Holdings Pty Limited v Fair Work Ombudsman (2014) 221 FCR 153 (Rocky Holdings).
63 In Rocky Holdings the primary Judge imposed a single penalty in respect of multiple contraventions of each of three terms of the NES and each of six terms of a modern award (nine separate penalties). The appellants contended that the primary Judge had misconstrued s 557(1) and that it required only one penalty to be imposed in respect of the three contraventions of s 44(1) and one penalty to be imposed in respect of the six contraventions of s 45.
64 The Full Court rejected the submission that, because there were only two legislative provisions involved, the effect of s 557(1) was that, if all nine contraventions were indeed part of the same course of conduct, they were reduced to two. Their Honours agreed (221 FCR 162 at [19]) with the reasoning of Logan J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (No 2) [2010] FCA 652 (QR) at [16] that:
the course of conduct must be associated with the particularised term of the particularised instrument. That is the contravention of the term of the transitional instrument. One does not look at course of conduct for the purposes of s 557 at a level of abstraction divorced from the contravened provision as particularised (ie the term in question and the transitional instrument in question).
65 The Full Court considered that ss 557(1) and (2) are ambiguous in that they are capable of being read as referring to the existence of the identified provision or to the substance of the identified provision. The Full Court resolved that ambiguity as follows, at [13]:
The reference in s 557(1) to "a civil remedy provision referred to in subsection (2)" discloses that it is the provision which is relevant. Section 557(2) identifies each of ss 44(1) and 45 as a civil remedy provision. It is the substance of those provisions which create the proscriptions. Section 44(1) proscribes contraventions of a provision of the NES. Section 45 proscribes contravention of a term of a modern award. The appellants' alternative contention treats the references to ss 44(1) and 45 (and every provision listed in s 557(2)) as a reference not to the substance but to the mere existence of the provision irrespective of the nature of the contravention the provision creates. Section 557(2) should be recognised to be a form of definitions provision. It defines civil remedy provisions for the purposes of s 557(1). The function of s 557(2) is to indicate that when a provision is identified, it is the substance of the provision found elsewhere in the Act (in this case, in ss 44(1) and 45) which is the civil penalty provision. As the FWO put it in written submissions:
However, section 557 also operates on contraventions which relevantly occur when a term of an award or a provision of an NES is contravened. This now occurs indirectly through the operation of sections 44 and 45. In the case of s. 45 (for example), the contravention occurs when a term of a modern award is contravened. Thus the effect of subsection 557(1) in relation to contraventions of s. 45 is that:
… 2 or more contraventions of (a term of an award) are, subject to subsection 3, taken to constitute a single contravention …
The appellants construe s. 556 as if it said that 2 or more contraventions of an award or 2 or more contraventions of an NES are taken to constitute a single contravention.
66 In short, their Honours regarded the relevant term in each agreement as a separate "civil remedy provision" for the purposes of s 557(1), such that they were not required to be treated as a single contravention.
67 The Full Court did not need to consider the construction of s 557(3), as its application was not in contention. It appears to follow from the Full Court's reading of "contraventions of a civil remedy provision" in s 557(1), that s 557(3) would have been engaged, for example, in respect of the multiple contraventions of an award term requiring payment of a Sunday overtime rate, if a Court had previously imposed a pecuniary penalty for an earlier contravention of that term of that award.
68 Rocky Holdings has been applied in subsequent cases and, relevantly, in the context of breaches of the terms of enterprise agreements (see for example Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd (No 2) [2016] FCA 727; Fair Work Ombudsman v South Jin Pty Ltd (No 2) [2016] FCA 832; Fair Work Ombudsman v Lohr (2018) 356 ALR 424).
69 If the approach taken in Rocky Holdings to award breaches is applied to s 417(1) contraventions then industrial action organised by officers of an employee organisation where there are multiple in-term enterprise agreements covering the relevant organisation, would be regarded as giving rise to contraventions of separate civil remedy provisions for the purposes of s 557(1). This would be so even if all of the relevant enterprise agreements operated at a single site or applied to the same employer.
70 The application of Rocky Holdings also has consequences for the construction of s 557(3), given that the relevant expressions in each subsection are almost identical. Section 557(3) would only disentitle an organisation of the benefit of s 557(1) if the earlier contravention of s 417(1) was in relation to the same enterprise agreement which is the subject of the present proceedings. This reading would avoid s 557(3) constituting a "one strike" rule, as concerned the primary Judge in the instant case.
71 Applying this reasoning to the instant case it would follow that s 557(3) had no application because the pecuniary penalties previously imposed on the MUA for contraventions of s 417(1) did not relate to industrial action during the term of the enterprise agreement concerned in the present matter.
72 Absent such a reading of s 557(3), a single breach of s 417(1) would forever disentitle an organisation from the benefits of s 557(1) in circumstances completely unrelated to the prior breach. Such a result seems incongruous given that, applying Rocky Holdings, an employer is only denied the benefit of s 557(1) in respect of, say, a breach of the wages term of an enterprise agreement if they have previously contravened the same term of that agreement. Hence, if the enterprise agreement is replaced by a new agreement, the employer, as it were, starts with a clean slate.
73 I note that in Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (The Kane Constructions Case) [2017] FCA 168, Jessup J dealt with the application of s 557 in circumstances where there were multiple in-term enterprise agreements which provided the basis for the s 417(1) breaches. Jessup J distinguished QR and Rocky Holdings on the following basis ([2017] FCA 168 at [66]):
The existence of an in-term enterprise agreement is an element of liability arising under s 417, but the section is not concerned with a contravention of the agreement, or a term of it. The substance of the norm for which the section provides is exactly the same as between two or more employees each of whom is covered by a different enterprise agreement: he or she must not organise or engage in industrial action.
74 There is, with respect, reason to doubt his Honour's conclusion. Importantly, his Honour did not give any consideration to s 557(3) and nor did he consider the relevant legislative history. The legislative history is quite instructive.
75 The legislative antecedents to s 557 may be traced back to the insertion of s 119(1A) into the Conciliation and Arbitration Act 1904 (Cth) in 1970 and to s 178(2) the Industrial Relations Act 1988 (Cth) and more recently s 719(2) of the Workplace Relations Act 1996 (Cth).
76 In Rocky Holdings the legislative history was a central consideration. The Full Court observed (at [16]) that the difference in language between s 557 and its predecessor provisions "are differences in form rather than substance". The legislative history may be said to support the extension of the approach taken in Rocky Holdings to s 417(1) contraventions because in times past industrial action was not the subject of a discrete civil remedy provision, but was dealt with through the insertion of a term into the relevant award, namely a bans clause.
77 As observed by Logan J in QR at [25]:
There is no hint in the explanatory memorandum of any intention on the part of Parliament to cause any break with the past in relation to the operation of the course of conduct provision, s 557 in the Fair Work Act. Of course, it may be just that such a break occurred inadvertently. In this case, though, I doubt that there is any break with the past. One might have expected, given the age of course of conduct provisions, if there were to have been an intended break with the past, for there to have been express reference to that in the explanatory memorandum.
78 In the normal course I would express a concluded view on the application of Rocky Holdings to s 417(1) contraventions, but I am conscious that this issue has not been raised in the parties' submissions, nor was it canvassed during the course of oral argument. While the Court is plainly not bound by the parameters of counsels' submissions on interpretation and may adopt a construction that has not been argued by the parties, the freedom to do so is subject to considerations of procedural fairness (see Accident Towing & Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529 at 547 per McGarvie J and Coleman v Power (2004) 220 CLR 1 at [243] per Kirby J). The parties have not been afforded an opportunity to comment on this issue and in those circumstances I do not propose to express a concluded view. The parties may wish to address the matter on the remittal.