Fair Work Ombudsman (formerly Australian Building and Construction Commissioner) v Construction, Forestry, Maritime, Mining and Energy Union

Registry: Australian Capital Territory

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 45

Date of hearing: 13 December 2022

Counsel for the Applicant: Mr A Pollock

Solicitor for the Applicant: Ashurst Australia

Counsel for the First Respondent: Mr W L Friend KC with Mr C A Massy

Solicitor for the First Respondent: Slater & Gordon Lawyers

Counsel for the Second, Third and Fourth Respondents: The Second, Third and Fourth Respondents did not appear

BETWEEN: FAIR WORK OMBUDSMAN( FORMERLY AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER) Applicant

AND: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION First Respondent

ZACHARY SMITH (and another named in the Schedule) Third Respondent

order made by: KATZMANN J DATE OF ORDER: 17 JANUARY 2023

TO: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

1. Pursuant to s 323 of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), the Fair Work Ombudsman is substituted as the applicant.

1. The first respondent pay a penalty of $180,000 in respect of its contravention of s 47(1) of the Building Construction (Improving Productivity) Act 2016 (Cth) on 14 May 2018.
2. The penalty be paid to the Commonwealth of Australia within 28 days. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 This is a case about an unlawful picket. The case was brought by the Australian Building and Construction Commissioner under the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act) against the Construction, Forestry, Maritime, Mining and Energy Union (Union) and three of its employees and office-bearers (union officials). The parties reached agreement on a number of factual matters. In particular, the Union and the three union officials admitted that they engaged in an unlawful picket. Three matters remained in dispute. They concerned the number of contraventions committed by the Union, the amounts in which the respondents should be penalised, including the correct approach to the assessment of penalties, and whether personal payment orders should be made against the three union officials. 2 On 28 July 2020 I delivered judgment: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Constitution Place Case) [2020] FCA 1070. Amongst other things, I found that, although each of the three union officials contravened s 47(1) of the BCIIP Act, on the proper construction of s 94(1) of the BCIIP Act, the effect of which is that the conduct of a union official within the scope of his or her ostensible authority is conduct also engaged in by the Union, the Union contravened s 47(1) once only. I made orders for pecuniary penalties against all respondents. One of the orders (order 8) required the Union to pay a penalty of $126,000 in respect of its contravention of s 47(1), which represented 60% of the then statutory maximum of $210,000. In fixing that penalty I followed a number of Full Court judgments which stipulated that, although the overriding consideration in imposing a civil penalty is deterrence, the penalty must be proportionate to the gravity of the contravening conduct. The Commissioner appealed on a number of grounds. After the appeal was lodged, the High Court allowed an appeal by the Commissioner from a judgment in which five members of this Court endorsed the approach I had taken. That judgment was Pattinson v Australian Building and Construction Commissioner (2020) 282 FCR 580. The High Court judgment is Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 399 ALR 599; 96 ALJR 426; 314 IR 301. It was published on 13 April 2022. 3 Pattinson was concerned with contraventions of the Fair Work Act 2009 (Cth) (FW Act). The contraventions involved misrepresentations by a union official to two employees of a contractor at a building site that, in order to perform the work they had attended the site to perform, they were required to become union members. The primary judge was disposed to fix the statutory maximum of $63,000 for each contravention but, because the two contraventions occurred as part of a single course of conduct, reduced each penalty by half so that the total penalty reflected a single maximum penalty: Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654; 291 IR 286 at [115]-[118], [128]. His Honour took into account the extensive record of contravening conduct and the context in which the misrepresentations were made, which included the Union's longstanding "no ticket, no start" policy, enforcement of which had been unlawful at least since the commencement of the Workplace Relations Act 1996 (Cth) (WR Act). The Full Court held that the primary judge had erred in imposing on the Union what was, in effect, the maximum penalty, which should be reserved for the most serious examples of contravening conduct, and was disproportionate to the nature, gravity and seriousness of the circumstances of the instant contraventions. 4 In Pattinson at [9] the plurality (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ) emphasised that "the purpose of a civil penalty is primarily, if not solely, the promotion of the public interest in compliance with the provisions of the Act by the deterrence of further contraventions of the Act" and, in that context, the penalties fixed by the primary judge were appropriate in that "they were no more than might be considered to be reasonably necessary to deter further contraventions of a like kind by Mr Pattinson, the CFMMEU or others". As their Honours put it, "[t]hey represented a reasonable assessment of what was necessary to make the continuation of the CFMMEU's non-compliance with the law, amply demonstrated by the history of its contraventions, too expensive to maintain". 5 Their Honours held that there was no place in a civil penalty regime for a "notion of proportionality" in the sense in which the Full Court used the term. In particular, they held at [10] that: Nothing in the text, context or purpose of s 546 [of the FW Act] requires that the maximum penalty be reserved for the most serious examples of misconduct within s 349(1). What is required is that there be "some reasonable relationship between the theoretical maximum and the final penalty imposed" [citing Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 at [156])]. That relationship is established where the maximum penalty does not exceed what is reasonably necessary to achieve the purpose of s 546: the deterrence of future contraventions of a like kind by the contravenor and by others. 6 In the appeal from my judgment, the Full Court made orders by consent allowing the appeal on ground 1, the substance of which was that I had erred in the determination of the penalty to be paid by the Union by not following the approach to the imposition of civil penalties enunciated by the High Court in Pattinson. Consequently, the Full Court ordered (also by consent) that the penalty order made against the Union (order 8) be set aside. The appeal was otherwise dismissed. The Full Court remitted the matter to me to refix the penalty on the Union. 7 At the remittal hearing the Commissioner did not appear. The Fair Work Ombudsman appeared in his place. Since the matter was remitted, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) was enacted. Among other things, the Amending Act provides for the abolition of the Australian Building and Construction Commission and the office of Commissioner. Clause 323(1) of Sch 1 Pt 3 (Div 5) of the Amending Act provides that: If any civil proceeding to which the Australian Building and Construction Commissioner or an inspector is a party were pending in a court immediately before the transition time: (a) The Fair Work Ombudsman is, after the transition time, substituted for the Australian Building and Construction Commissioner or the inspector as a party to those proceedings; and (b) if the proceedings are for an order relating to a contravention of a civil remedy provision - the Fair Work Ombudsman is taken to be an authorised applicant for the order. 8 The "transition time" is defined in cl 318 of Sch 1 Pt 3 (Div 5) to mean the commencement of Division 1. Division 1 commenced on 7 December 2022 (Amending Act, s 2(1), item 6, column 3), six days before the remittal hearing. 9 On the basis of my factual findings, which neither party sought to disturb, the Ombudsman submitted that, having regard to the reasons in Pattinson, some of the matters I took into account in declining to impose the maximum penalty on the Union (or some amount close to it) were, in effect, irrelevant and no penalty short of the maximum or "near the maximum" would be appropriate.

The relevant factual findings 10 The facts relating to the picket are set out at length in my earlier judgment (at [18]-[45]). The findings I made there should be taken to be incorporated by reference in this judgment. Still, it is useful to refer to some of the salient facts. 11 The Union's contravention stemmed from the conduct of the three union officials leading to, and during, an obstructive picket on 14 May 2018 at the Constitution Place building site in London Circuit, Canberra. The conduct occurred in the course of an industrial dispute between the Union on the one hand and CM Dale, T Dale, RI Hitchcock and AM McKenna, trading as Hitchcock Civil Engineering and Landscapes (Dale & Hitchcock) on the other. The subject-matter of the dispute was the alleged underpayment of workers at the site. Dale & Hitchcock had no employees. All the workers it used on the construction project were employed by a company, the directors of which were Robert Hitchcock and Charles Dale (who were also two of the four partners of Dale & Hitchcock), and supplied to Dale & Hitchcock under a labour hire arrangement. 12 A little over two months earlier, one of the union officials, Jason O'Mara, who at the time was both an employee of the Union and the Secretary of the ACT Branch of its Construction and General Division, wrote to Mr Hitchcock. Mr O'Mara informed Mr Hitchcock that the Union had become aware that Dale & Hitchcock were employing workers on terms and conditions derived solely from the Building and Construction General On-Site Award 2010, when they were covered by an enterprise agreement. Mr O'Mara asserted that the workers were entitled to be paid amounts equivalent to the difference between the amounts to which they were allegedly entitled to under the enterprise agreement and the amounts they received under the award. 13 Evidently shortly thereafter, Mr Hitchcock indicated that no action would be taken to address the Union's concerns. Zachary Smith, another of the union officials, an employee of the Union and the Assistant Secretary of the ACT Branch, wrote to Mr Hitchcock requesting the agreement of the business to an audit by an approved auditor in accordance with the terms of the enterprise agreement. Mr Hitchcock agreed to the request but the representatives of the respective parties were unable to agree on the terms of reference for the audit. Consequently, on 7 May 2018 the Union filed an application in the Fair Work Commission under s 739 of the FW Act for the Commission to deal with the dispute about the alleged underpayments in accordance with the dispute settlement procedure in the enterprise agreement. The evidence indicated that a conciliation conference was scheduled to take place on the afternoon of 14 May 2018. 14 The conduct in which the union officials (and hence the Union) were involved consisted of: hanging signs and flags on fences bordering Constitution Avenue bearing logos and other Union insignia; parking two cars immediately in front of the main entrance gate to the project site located on Constitution Avenue near the westernmost corner of the site in such a way as to block vehicle access and partially block pedestrian access to the main entrance gate; and partially block access to the padlock which secured the main entrance gate overnight; congregating in a group at the main entrance to the project site and linking arms in such a way so as to block pedestrian and vehicle access to the main entrance and access to that padlock; placing and securing chains and locks on various gates at the project site without the authorisation of its occupiers, such that they were unable to open the gates; parking a car registered to the Union in front of the pedestrian access gate on Theatre Lane in such a way as to block pedestrian access to that gate; wearing clothing bearing logos and other insignia of the Union; parking a variable message sign opposite the project site and operating the sign in such a way as to electronically display at various times these messages: ○ "Alto Scaffold = wage theft"; ○ "Dale & Hitchcock cheats workers"; ○ "Stop wage theft on ACT government projects"; ○ "Danger! Wage theft occurs on this site"; ○ "Bad bosses and ACT Gov partners in crime"; and ○ Other words to the effect of alleging "wage theft". 15 Soon after he arrived at the site to open it at about 5.30 am, the site supervisor for Dale & Hitchcock telephoned Mr Hitchcock and told him that they had no access to the sites as the gates were blocked. He also called the person responsible for organising the trucks and told him to put the vehicles on standby until the "blockade issue" was resolved. When Mr Hitchcock arrived, he asked Mr O'Mara what was going on and was told that "[y]ouse are engaged in wage theft". Mr Hitchcock directed Mr O'Mara to move the Union's cars and threatened to call the police if they were not moved. Evidently the cars were not moved because Mr Hitchcock telephoned the police. 16 A police officer appeared at about 6 am. He spoke to Mr O'Mara who explained the reason for the blockade and told him they were trying to contact the principal contractor, Construction Control Australia Pty Ltd (Construction Control), to discuss the matter. Mr O'Mara managed to reach the managing director of Construction Control and informed him that the Union had an issue with Dale & Hitchcock. At around 6.30 am the Construction Control Site Manager arrived. Mr O'Mara told him to go into his shed and wait until the dispute was resolved. He explained that the Union was taking a stand against "sham contracting". 17 Mr Hitchcock arranged for a group of truck drivers who were due to work at the site that day to try to gain access. A bus carrying the group of truck drivers arrived at the site between 7.15 and 7.45 am. 18 When the truck drivers arrived, the picketing group, including the union officials, linked arms in such a way as to obstruct the bus from entering the site. Mr Dale used a pair of bolt cutters to cut a padlock, which had been securing the front gate, and attempted to open the gate. The picketing group, including the union officials, blocked entry to the site so as to delay workers engaged by Dale & Hitchcock from entering the site. They refused to move the cars which were obstructing entrance to the site when requested to do so. After a meeting with Dale & Hitchcock personnel, they agreed on an audit process. 19 By about 8.30 am the picketing group had dispersed and left the site, the variable message sign had been removed, and work on the site had resumed.

The maximum penalty 20 As I noted in my earlier judgment (at [49]), s 47(1) is a "Grade A civil penalty provision", attracting a maximum penalty of 1,000 penalty units for a body corporate and 200 penalty units for an individual: BCIIP Act, s 81(2). At the time of the contraventions in the present case the value of a penalty unit was $210 (Crimes Legislation Amendment (Penalty Unit) Act 2017 (Cth), Sch 1) and therefore the maximum penalty for a contravention that can be imposed on the Union is still $210,000.

General principles 21 The general principles were largely uncontroversial and remain unaffected by the judgment in Pattinson. It is convenient to refer to them again here. 22 First, s 81(6) of the BCIIP Act stipulates that the Court must take into account all relevant matters, including: (a) the nature and extent of the contravention; and (b) the nature and extent of any loss or damage suffered because of the contravention; and (c) the circumstances in which the contravention took place; and (d) whether the person has previously been found by a court … to have engaged in any similar conduct. 23 Second, other relevant considerations include the seriousness of the contravention; whether or not the contravention was deliberate; the size of the contravener and its degree of power; the extent to which senior officials were involved in the contravention; the culture of the organisation concerning compliance or contravention; any cooperation with the regulator; and the existence and extent of any contrition and corrective action. 24 Third, the purpose of a civil penalty is principally, if not entirely, protective; it is to promote the public interest in compliance: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 at [54]-[55] (French CJ, Kiefel, Bell, Nettle and Gordon JJ). In other words, the purpose is "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 …": Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non Indemnification Personal Payment Case) (2018) 264 FCR 155 at [19]. Thus, the overriding consideration is deterrence, both specific and general. It makes no difference that the liability of the contravener is vicarious rather than direct: Stuart v Construction, Forestry, Mining and Energy Union (2010) 185 FCR 308 (Besanko and Gordon JJ) at [52]-[57] and [71]-[73]. 25 It is clear from Pattinson that the maximum penalty may be imposed where it is considered necessary for the purpose of deterrence, even if the nature of the conduct in question is not in the most serious category. It follows that a large pecuniary penalty may be appropriate for a relatively minor contravention in order to serve that purpose. The plurality explained in Pattinson at [46]: It is important to recall that an "appropriate" penalty is one that strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case. A contravention may be a "one-off" result of inadvertence by the contravenor rather than the latest instance of the contravenor's pursuit of a strategy of deliberate recalcitrance in order to have its way. There may also be cases, for example, where a contravention has occurred through ignorance of the law … or where the official responsible for a deliberate breach has been disciplined ... In such cases, a modest penalty, if any, may reasonably be thought to be sufficient to provide effective deterrence against further contraventions. 26 The plurality went on to say that the reasonableness of the relationship between the theoretical maximum and the final penalty imposed may be established having regard to the circumstances of the conduct involved in the contravention and the circumstances of the contravener (at [55]). That is because either the circumstances of the contravening conduct or the circumstances of the contravener may bear upon the extent of the need for deterrence in the penalty. Their Honours explained that the intention of the Act is that "the maximum penalty … be imposed in respect of a contravention warranting the strongest deterrence within the prescribed cap" (at [58]). While the Act to which their Honours were referring was the FW Act, not the BCIIP Act, it was common ground in the present case that the principles in Pattinson apply equally to the approach to civil penalties under the BCIIP Act.

The nature and extent of the contravention 27 In my earlier judgment, I found (at [57]) that the contraventions by the union officials and the consequent contravention by the Union consisted of obstructing the entry to a building site over a period of up to three hours, resulting in a delay of two hours in the commencement of work that day. 28 Two businesses were affected by the conduct. By its very nature a picket is a deliberate act. This picket was not spontaneous. Although the evidence did not enable me to reach a view about the extent of the planning, I accepted that some planning was necessarily involved. Mr O'Mara and Mr Smith refused to remove their cars when asked to do so and, despite a number of requests to discontinue, the picket did not cease until Dale & Hitchcock came to an agreement with the Union about an audit process.

The circumstances in which the contravention took place 29 The contravention took place in the middle of an industrial dispute that the Union had brought before the Fair Work Commission and on the morning of the day the conciliation conference was scheduled to take place. As I found (at [59] of my earlier judgment), the obvious purpose of the picket was to put pressure on Dale & Hitchcock to agree to the Union's demands or, at least, accelerate the resolution of the dispute.

The seriousness of the contravention 30 I found that the contravention was serious, involving as it did the deliberate obstruction of entry to the building site, the refusal to remove the vehicles when asked, and the use of chains and locks without authorisation from the occupiers of the site. Although no-one was hurt, I found that there was at least a theoretical risk to the safety of the picketers.

The nature and extent of any loss or damage caused by the contravention 31 As a result of the unlawful picket, the commencement of work at the site was delayed by approximately two hours. Both Dale & Hitchcock and Construction Control suffered loss and damage from of loss of productivity from labour and plant and equipment and the consequential impact on the performance of later scheduled works which were delayed by the picket. 32 The value of the lost productivity incurred by Dale & Hitchcock was $15,195. The agreed facts did not particularise the value of the lost productivity for Construction Control.

Previous findings of engagement in similar conduct 33 At the first hearing the Commissioner tendered a 77-page document itemising contraventions of industrial laws by the Union and the Construction, Forestry, Mining and Energy Union (CFMEU) and the Maritime Union of Australia (MUA) before their amalgamation to form the Union. That document, which became Exhibit B, included references to 158 cases in which penalties had been imposed on the CFMEU or the Union, eight in which penalties had been imposed on the MUA. At the remittal hearing the Ombudsman tendered a 94-page document listing 197 cases (including the present) in which the Union and its officials were penalised for contravening the FW Act, its predecessor, the WR Act, and the BCIIP Act and its predecessor, the Building and Construction Industry Improvement Act 2005 (Cth). I discussed in my previous judgment (at [121]-[153]) the relevance and weight to be attached to previous contraventions of industrial laws and do not intend to repeat what I said there. It is sufficient for present purposes to note the following matters. 34 First, the present case is not unique. The up-to-date list includes seven cases in which the Union or the CFMEU was penalised for engaging in unlawful pickets and several other cases in which it was penalised for conduct of a similar nature. 35 During the initial hearing the respondents submitted that "limited weight" should be placed on contraventions of a similar nature by the Union (and the CFMEU) in other parts of the country because there had only been one previous contravention in the ACT. I accepted that the evidence showed that the conduct of officials from the ACT branch was atypical but I did not accept that that warranted limiting the weight to be given to the extensive record of the Union (and the CFMEU) across the country. Rather, I pointed out that there was an obvious need to deter the Union from engaging in contravening conduct and that, in the absence of evidence that the Branch had taken any steps to reduce the risk of its officials, employees or agents contravening the BCIIP Act, I would give this circumstance little weight (at [162]).

Other considerations 36 As I observed in my previous judgment, the Union does not have "a culture of compliance" and its overall record tends to show an attitude of indifference to the law at least on the part of its Construction and General Division (at [118], 151]). Furthermore, as I also observed, neither the penalties imposed in the past nor the repeated imposition of penalties has had any deterrent effect and it is reasonable to infer that the Union takes the view that paying penalties is merely a cost of doing business (at [164]). Yet a civil penalty must be fixed so as to ensure that it is not to be regarded by the contravener or others as an acceptable cost of doing business: Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at [66]; Pattinson at [17]. It is evident that a small penalty is unlikely to act as an effective deterrent to a "well-resourced contravenor": Pattinson at [60]. The Union is certainly a "well-resourced contravenor". The most recent financial report for the Construction and General Division alone, which was lodged with the Registered Organisations Commission on 14 September 2022, discloses that its total net assets exceed $12 million.

What is the appropriate penalty? 37 There is little that can be said against the proposition that a high penalty is called for. Nothing less would serve the statutory purpose. The Union expressed no regrets and exhibited no remorse. It has apparently taken no corrective action. It argued that a lack of contrition is not an aggravating circumstance which could increase the penalty. So much may be accepted: see, for example, BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining Energy Union [2001] FCA 336 at [10] (Kiefel J). But the Union's lack of contrition and failure to take corrective action, despite the imposition of numerous penalties for contraventions of a similar kind, underscores the compelling need to fix a penalty large enough to operate as an effective deterrent. 38 The Union submitted that the nature and extent of the contravention and the extent of the loss caused by the contravention counted against the imposition of the maximum penalty. Indeed, it went so far as to argue that the penalty I imposed was sufficient for the purpose of deterrence "at least from the point of view of the ACT Branch". It relied on the fact disclosed by the Union's financial records, that Mr O'Mara is no longer the Branch secretary and therefore no longer a member of the executive of the Construction and General Division. For this reason, it suggested there was a limited need for deterrence. 39 While I am not persuaded that the maximum penalty must be imposed, I reject the Union's submission. The mere fact that Mr O'Mara no longer holds executive office is of no material consequence. His place was taken by Mr Smith, who was also involved in the contravention. And there was no evidence to suggest that Mr O'Mara was no longer an employee of the Union. 40 The Union sought to derive some comfort from a remark made by McKerracher J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The DoubleTree Hilton Case) [2021] FCA 1468 at [64] in which his Honour noted that, of 35 previous proceedings involving contraventions of s 500 of the FW Act, only three appear to have occurred in Western Australia and they related to the conduct of two officials on four occasions between nine and six years beforehand. I fail to see how this remark assists the Union. McKerracher J held that all of the Union's contraventions of the section should be taken into account, only observing that, "to the extent that the Western Australian cases inform the circumstances of the present contravention, they should be given more weight" (at [70]). 41 The Union also sought to derive some comfort from the remarks of Logan J in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88 at [143]-[144]. The point his Honour was making was that "the antecedents of [the union's] agent may well be relevant to an assessment of the degree of culpability of the union for that agent's behaviour". But the question here is the level of penalty necessary to give effect to the statutory purpose of specific and general deterrence. It is obvious from Pattinson that even the existence of an unblemished record on the part of a union official may be irrelevant to that question As Mr Pattinson had not previously been found to have contravened the FW Act or any of its predecessors. 42 Finally, the Union contended that in working out the amount necessary to deter contraventions of a like kind, the Court would take into account that, in contrast to the position in Pattinson, the contravention in this case was not part of a longstanding campaign by the Union. Instead, it submitted, "[t]he contravening conduct appears to have been a response to [a] specific circumstance involving a subcontractor" which was not meeting its obligations under the enterprise agreement and the Union's desire to place pressure on the subcontractor in advance of the proceeding in the Fair Work Commission. It submitted that, of the previous cases to which I referred in my earlier judgment, only two relate to picketing arising out of a dispute about outstanding entitlements. 43 I accept that the evidence in the present case does not indicate that the conduct in question here was part of a longstanding Union campaign. Even so, it was conduct of a kind in which the Union had frequently engaged such that it might well be described as typical of its modus operandi. Further, while only two of the cases I mentioned may have related to picketing arising out of a dispute about outstanding entitlements, a good number of the Union's previous contraventions involved obstructing the entry of persons on building sites with the object of coercing or pressuring building contractors to agree to the Union's requests or demands. They illustrate a pattern of behaviour in which the Union acts as if it is above the law. The contravention in the present case is no different. The lack of contrition and corrective action by the Union or the Branch indicates that, unless a heavy penalty is imposed, the legislative intention of deterring conduct of a like kind by the Union and others will be undermined. 44 Applying the approach to civil penalties as explained in Pattinson, the penalty must be increased substantially. In view, however, of its cooperation with the regulator and its admissions of wrongdoing, I am not convinced that the maximum penalty is called for. The relatively early admissions spared the regulator the costs of a trial, freeing up its resources to increase the chances that other contraveners will be detected and brought before the courts, which has the effect of increasing deterrence: see Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; (2004) ATPR ¶41-993 at [53] (Branson, Sackville and Gyles JJ); Hardwick v Australian Manufacturing Workers' Union [2010] FCA 818; 198 IR 312 at [19] (Gordon J). Instead, I would impose a penalty of $180,000, which amounts to 86% of the maximum.

Other orders? 45 No application was made for costs, consistent with the position taken by the Commissioner at the first hearing. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann.

SCHEDULE OF PARTIES ACD 29 of 2019 Respondents Fourth Respondent: JOSHUA BOLITHO