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.