Assessment of penalties for Mr Mattas
42 Mr Mattas committed eight contraventions of s 46 of the BCI Act and seven contraventions of s 52 of the BCI Act.
43 Section 83(2) of the BCI Act provides, relevantly, that a person is not liable for more than one pecuniary penalty in relation to the same conduct. Under s 84(1), a single civil penalty order may be made for multiple contraventions where the contraventions are part of a series of contraventions of a similar character.
44 The applicant seeks one penalty for Mr Mattas' contravention of s 46 of the BCI Act on 21 July 2020. The applicant seeks a second penalty for Mr Mattas' contraventions of s 52 on 27, 28, 29, 30 and 31 July and 3 and 4 August 2020, but not for the s 46 contraventions on those dates because of s 83(2). The applicant submits that for the purposes of s 84(1), it is entitled to make an election between the s 46 or the s 52 contraventions, citing Canturi v Sita Coaches Pty Ltd (2002) 116 FCR 276 at [84]. The respondents have not argued to the contrary.
45 At the time of the contraventions, a penalty unit was $210, resulting in a maximum penalty of $44,400 per contravention for an individual. Under s 84(2) of the BCI Act, the maximum penalty which could be imposed on Mr Mattas for his seven contraventions of s 52 of the BCI Act is $310,800.
46 I have already summarised the circumstances of Mr Mattas' offending. In my earlier reasons, it was necessary to examine whether Mr Mattas had complied with the statutory preconditions for giving the directions that were purportedly given under s 85(1) of the WHSQ Act. The applicant submits that my findings that Mr Mattas did not have a reasonable concern that workers were exposed to a serious risk to their health and safety emanating from imminent or immediate exposure to a hazard and he did not consult about the risk, should be taken into account in determining the appropriate penalties.
47 However, those findings were ultimately irrelevant to my findings concerning Mr Mattas' contraventions of s 46 of the BCI Act. The nature of Mr Mattas' contraventions of s 46 (and consequently of s 52) was more confined. They occurred because Mr Mattas had not been validly appointed as Site-wide HSR and the directions he purported to give under s 85(1) of the WHSQ Act were invalid and of no effect, with the consequence that the employees of the Seven Subcontractors were not obliged or entitled to refuse to work and took unlawful industrial action. Even though Mr Mattas failed to comply with other preconditions for the exercise of power under s 85(1) of the WHSQ Act, those employees would have still been obliged to cease work upon the giving of the directions and would not have taken unlawful industrial action. It is necessary to ensure that Mr Mattas is not punished for conduct and circumstances that did not form the basis of the contraventions that were found to have occurred.
48 Section 85 of the WHSQ Act confers power upon HSRs to direct a cessation of work in particular circumstances involving a serious risk to workers' health and safety. The conferral of that power is important for ensuring the safety of employees, but also creates the capacity to cause serious economic loss for employers and others. The great power conferred on HSRs carries great responsibility. That is recognised by the WHSQ Act, not only by the imposition of strict conditions for the exercise of the power, but by important requirements under Part 5 Div 3 for the appointment of HSRs (including notice, negotiation, agreement and election) and by providing for their immunity from personal liability.
49 I found that, until the present proceedings were commenced, Broad had not disputed that Mr Mattas had been validly appointed as Site-wide HSR, indicating an acceptance that the proper procedures had been followed under Part 5, Div 3 of the WHSQ Act for Mr Mattas' appointment. I found that there was negotiation and agreement in compliance with s 55(2) of the WHSQ Act as to a Site-wide work group between the Union and Broad and also between the Union and Blue Star Pacific, Beavis and Bartels, Lindores, L&D Contracting and Centrepoint Plumbing such that Mr Mattas could be regarded as having been validly appointed as the HSR for a work group consisting of the employees of those subcontractors.
50 However, there was no such negotiation and agreement between the Union and the Seven Subcontractors. In the absence of compliance with s 55(2), I found that Mr Mattas was not validly appointed as HSR for any work groups consisting of the employees of these subcontractors and was not qualified to give any direction under s 85(1) to those employees.
51 Mr Mattas' conduct of giving directions to the employees of the Seven Subcontractors to cease work when he had not ensured that he had been properly appointed as their HSR must be regarded as serious in light of the great power that he wielded. His actions caused the relevant employees to take unlawful industrial action over seven days. His conduct also exposed those employees to the possibility of prosecution for contraventions of s 46 of the BCI Act.
52 In respect of Mr Mattas' contraventions of s 52 of the BCI Act, there is the additional serious element of organising the unlawful industrial action taken by the employees of four of the Seven Subcontractors with intent to coerce Broad, contrary to its will, to remove Mr Millan from the site and thereby not allocate him particular duties or responsibilities.
53 However, it must be acknowledged that Mr Mattas did not organise the stoppages of work knowing that he had not been validly appointed as HSR for the employees of the Seven Subcontractors. To the contrary, I accept he believed he had been appointed as Site-wide HSR. In addition, there is no suggestion that Mr Mattas did not genuinely believe that the booster assembly issue and Mr Millan's presence posed a serious risk to the health and safety of other workers. There is also no suggestion that the directions were issued for some improper or ulterior purpose.
54 The circumstances of the s 52 contraventions were unusual. In my earlier reasons, I was critical of Broad's inaction over the conduct of Mr Millan on 21 July 2020 and the earlier complaint of bullying behaviour that had been made against him. The conduct of Mr Mattas and Mr Blakeley can be regarded as a form of "self-help" to deal with unacceptable behaviour that Broad was unwilling to deal with. However, as I found, there were alternative lawful and legitimate forms of action that Mr Mattas and the Union could have taken to ameliorate the perceived threat to workers' safety posed by Mr Millan.
55 In Pattinson the plurality held at [46] that an "appropriate" penalty is one that strikes a reasonable balance between oppressive severity and the need for deterrence. In oral submissions, the applicant accepted that the particular and unusual circumstances of the case lessen the need for specific and general deterrence. However, I do not accept the respondents' submission that, "Mr Mattas' contraventions are at the lowest end of the severity scale".
56 The applicant accepts that this was the first occasion on which Mr Mattas contravened the BCI Act.
57 Mr Mattas has not expressed remorse for his conduct. That is not an aggravating factor, but in the absence of remorse, there remains a significant need for specific deterrence. The fact that Mr Mattas is now the holder of an entry permit under s 512 of the Fair Work Act 2009 (Cth) (the FWA) is also relevant to the need for specific deterrence of contraventions of a like kind.
58 Section 81(6) of the BCI Act requires that the nature and extent of any loss or damage suffered because of the contravention be taken into account. The applicant abandoned a claim for compensation for Broad. While it can be inferred that the stoppages of work must have caused some loss to Broad, there is no evidence as to the extent of that loss. I adopt the approach that the Court should not assume that the harm was extensive: see Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 798 at [68].
59 It must also be kept in mind that Mr Mattas' contraventions only involve the stoppages of work by the employees of the Seven Subcontractors and not the employees of the other eight subcontractors.
60 The applicant submits in respect of the s 46 contravention by Mr Mattas on 21 July 2020, an appropriate penalty would be in the order of $4,400. I accept that submission.
61 The applicant submits that a single civil penalty order may be made pursuant to s 84(1) for Mr Mattas' seven contraventions of s 52. The applicant also accepts that the Court is entitled to treat the contraventions as arising out of a course of conduct in circumstances where the same direction was given, at the same project, to employees of the same subcontractors, and in response to the same perceived risk.
62 The applicant submits that, taking into account that the contraventions arose out of a course of conduct, that Mr Mattas had a genuine safety concern and the need to apply the totality principle, an appropriate penalty would be in the order of $6,700. I accept that submission.
63 I will impose a pecuniary penalty of $4,400 on Mr Mattas in respect of his contravention of s 46 of the BCI Act and $6,700 in respect of his contraventions of s 52 of the BCI Act.