Fair Work Ombudsman v Gill

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. In Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union (Kwinana Bulk Jetty Case) [2025] FCA 994 (liability judgment) I found Mr Jason Gill contravened the Fair Work Act 2009 (Cth) by threatening Mr Christopher Copperthwaite at the Kwinana Bulk Jetty on 24 August 2021 by saying: "You'll end up dead dog if you keep going like this" (the threat).
2. I found the threat contravened three sections of the Act. Section 348, because it was said with the intent to coerce Mr Copperthwaite to take industrial action. Section 346, because it constituted adverse action taken against Mr Copperthwaite because he had not engaged in industrial action. Section 343, because it constituted taking action with the intent to coerce Qube Ports Pty Ltd, Mr Copperthwaite's employer, to exercise a workplace right to participate in enterprise bargaining in a particular way. I made declarations about each of those contraventions and ordered Mr Gill pay Mr Copperthwaite compensation of $14,000.
3. Sections 343, 346 and 348 are civil remedy provisions. Section 546(1) of the Act empowers the Court to impose a pecuniary penalty for a contravention of a civil remedy provision. At the time of the threat, the maximum penalty for each contravention was $13,320: s 539(2) of the Act and s 4AA Crimes Act 1914 (Cth).
4. Section 556 of the Act has the effect that, if Mr Gill is ordered to pay a pecuniary penalty under one of ss 343, 346 or 348 in relation to making the threat, he will not be liable to pay a pecuniary penalty under the other sections in relation to that same conduct. The parties agree only one penalty should be imposed. The Fair Work Ombudsman submits that s 348 should be treated as the "lead contravention" in respect of which a penalty should be imposed: see Fair Work Ombudsman v Roach (The Melbourne Quarter Case) [2023] FCA 781 at [14] (Wheelahan J).
5. For the reasons that follow, I am satisfied that it is appropriate to impose a penalty of $9,324 for Mr Gill's contravention of s 348 of the Act.

1. An appropriate penalty should represent an amount that is "no more than might be considered to be reasonably necessary to deter further contraventions of a like kind" by the contravenor or others: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450 at [9] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). The object is to "put a price on [the] contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act": Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 at [15] (French CJ, Kiefel, Bell, Nettle and Gordon JJ) citing Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152 (French J).
2. It is uncontroversial that civil penalties are imposed primarily, if not solely, for the purpose of deterrence: see Pattinson at [9] and [15] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). A civil penalty must be fixed with a view to ensuring that it is not regarded by the contravener or others as an acceptable cost of doing business: Pattinson at [17] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ) citing Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; 287 ALR 249 at [62] (Keane CJ, Finn and Gilmour JJ). There should be some reasonable relationship between the theoretical maximum and the final penalty imposed: Pattinson at [55] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).
3. In CSR at 52,152-3, French J listed several factors which informed the assessment of a penalty of appropriate deterrent value under the Trade Practices Act 1974 (Cth), as follows:

(1) The nature and extent of the contravening conduct.

(2) The amount of loss or damage caused.

(3) The circumstances in which the conduct took place.

(4) The size of the contravening company.

(5) The degree of power it has, as evidenced by its market share and ease of entry into the market.

(6) The deliberateness of the contravention and the period over which it extended.

(7) Whether the contravention arose out of the conduct of senior management or at a lower level.

(8) Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention.

(9) Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention.

1. These factors were cited in Pattinson at [18]-[19] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ), where the majority remarked that it may be seen that the list of factors includes matters pertaining both to the character of the contravening conduct (such as factors 1-3) and to the character of the contravenor (such as factors 4, 5, 8 and 9). However, it is important not to regard the list of possible relevant factors as a rigid catalogue of matters for attention. The Court's task remains to determine what an "appropriate" penalty is in the circumstances of the particular case: Pattinson at [19] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).

NATURE, EXTENT AND CIRCUMSTANCES SURROUNDING THE CONDUCT

1. Two matters are significant in my consideration of the nature, extent and circumstances surrounding Mr Gill's contravening conduct. First, the nature of Mr Gill's threat. Second, the intimidatory environment in which the threat was made.
2. As to the nature of Mr Gill's threat, the Ombudsman submits, and I agree, that the threat conveys that if Mr Copperthwaite continues to cross the picket line and not take industrial action, he will end up dead. The threat is unquestionably of a very serious nature.
3. As to the environment in which the threat was made, Mr Gill accepts my conclusion at [477] of the liability judgment that the threat was serious, made in close proximity to Mr Copperthwaite, in a confrontational manner, and caused him distress. I said in the liability judgment (at [118] and [378]-[379]) that the threat was made in the dark, whilst Mr Copperthwaite was surrounded by picketers who had yelled words like "scab", "dog" and "I know where you live" in his direction. I consider that the threat was made in an intimidatory environment. The Ombudsman also submits, and I agree, that the threat was targeted at a fellow employee who would risk having to confront Mr Gill again in a work context. I take account of these matters in reaching my conclusion that the contravening conduct is very serious.
4. The Ombudsman additionally submits that Mr Gill's conduct was not opportunistic and spontaneous. Rather, she says it was a contravention that involved a degree of forethought and premeditation. She points to two matters.
5. First, she submits that Mr Gill "clearly positioned himself to be in the dark, outside the clear line of CCTV footage, only centimetres away from [Mr] Copperthwaite, and with no legitimate purpose to be near the communications box". I do not accept this submission. At [67] and [88] of the liability judgment, I set out my findings about Mr Gill's positioning on the CCTV footage in the lead-up to and during the period that Mr Gill made the threat. On the basis of those findings and all of the material before me, I am not satisfied that Mr Gill deliberately took himself outside the line of the CCTV camera to commit the contravention.
6. Second, the Ombudsman relies on an email sent on 25 July 2021 by Mr Gill to Mr Brett, an Organiser in the Western Australian branch of the Maritime Union of Australia (MUA) Division of the Union, to submit that the conduct was pre-meditated. The email is described at [281] of the liability judgment. It was in reply to Mr Brett's email of 8.22 pm on 25 July 2021 notifying members of protected industrial action. Mr Gill's email was sent 40 minutes later. It reads:

I have a trailer load of broken bricks....I'm so prepared for this Thinking they will capitulate too quickly though...hope you are well mate

1. The Ombudsman submits that the email reflects some form of premeditation on the part of Mr Gill in that it demonstrates that Mr Gill "was going to go close or over the line in terms of behaviour" or "reflected a state of mind and a propensity towards extreme types of behaviour". She also submits that because Mr Gill has never given evidence explaining the email, including in his affidavit on penalty filed on 20 November 2025, I am to infer that any such explanation would not assist his case.
2. In the liability judgment, I found at [282]:

The Ombudsman appears to submit that the email forecasts the inevitable use of violence. There is at least some doubt about what Mr Gill intended to do with the broken bricks or, read in the context of the whole email, as to the seriousness of Mr Gill's remarks. By his intention, I mean whether he intended to use the bricks as an obstruction or weapon. By the context, I mean the tone across the whole email, including the "hope you are well mate", detracts from the menace suggested by the Ombudsman. I am not persuaded that one unanswered email of that sort, even with the other matters above, is a sufficient basis to conclude that the Union authorised Mr Gill to make the threat that he made or as the Ombudsman also alleges to do whatever he saw fit.

1. My findings were made in the context of considering the Union's liability for the contravening conduct of Mr Gill. I found the Union not liable. I rely on my findings at [282] of the liability judgment in also coming to the conclusion that the email is insufficient to establish Mr Gill's pre-meditation to make the threat to Mr Copperthwaite. It is also significant that there is a month between the sending of the email and the time Mr Gill made the threat to Mr Copperthwaite. That is a period of sufficient length to undermine any submission about pre-meditation. I am not satisfied that the email establishes the level of premeditation or forethought contended for by the Ombudsman.

1. At [476] of the liability judgment, I considered the difficulty in isolating the specific loss to Mr Copperthwaite caused by Mr Gill's contravening conduct, as compared to the conduct of the other picketers on 24 August 2021 and any conduct at the picket before or after 24 August 2021. I concluded:

I have had regard to the evidence of Mr Copperthwaite as to the distress caused by the picketers in the period before 24 August 2021 described at [53] above, including his comment to Inspector Tonev that over time he "almost became immune" to the constant behaviour. I have found that the conduct of the other picketers toward Mr Copperthwaite on 24 August 2021 included death threats (described at [384]) and statements that Mr Copperthwaite should "think about Charmaine and the kids" (at [393]). I accept that that conduct would have caused distress to Mr Copperthwaite. Nevertheless, my task is to award compensation that reflects Mr Gill's contravention alone, noting the inherently imprecise nature of calculating non-economic loss.

1. At [477] of the liability judgment, I concluded that it was appropriate to award Mr Copperthwaite $14,000. That amount reflected my conclusions on the seriousness of Mr Gill's conduct, but also the fact that Mr Copperthwaite has not suffered any diagnosed psychological injury.
2. Consistent with the evidence in the liability hearing, the Ombudsman submits that the nature and extent of loss or damage in this case was significant. She submits that the effect of the contravening conduct on Mr Copperthwaite was profound: it preoccupied his mind, and disrupted his family life and his sleep. Mr Copperthwaite still has panic attacks in dark areas and sleep issues due to the threat. I accept that submission, and give it weight in my consideration of the appropriate penalty.
3. Mr Gill accepts that his contravening caused appreciable distress and upset to Mr Copperthwaite. However, he submits that Mr Copperthwaite has been compensated by my order that he pay Mr Copperthwaite $14,000. He submits that while the compensation ordered does not undermine the impact, it is relevant to the level of penalty awarded. In determining the appropriate penalty, it is relevant to consider steps taken to ameliorate loss or damage (such as payment of compensation) as potentially mitigatory considerations: Australian Securities and Investments Commission (ASIC) v AMP Financial Planning Proprietary Ltd [2022] FCA 1115; 164 ACSR 64 at [113] (Moshinsky J). Accordingly, I have taken into account the payment of compensation as a consideration in my assessment of the appropriate penalty.

1. In Mr Gill's affidavit of 20 November 2025, he deposes that his employment with Qube ended in December 2021 for reasons that include the events the subject of this proceeding. After Mr Gill filed an unfair dismissal application, it was agreed between Qube and Mr Gill that this employment would be ended by way of resignation. He adds that he found the experience of being sacked from Qube "humiliating and distressing". He says he has read and considered my decision on liability in this case, and "although [he is] disappointed" by my findings against him, he understands how I reached my conclusions. He is "embarrassed by the findings".
2. Mr Gill deposes that the "significant publicity" around this matter, including press releases and articles published which name Mr Gill personally, contributed to his difficulties finding employment after his employment with Qube ended. Mr Gill deposes further that he has met with the MUA's in-house lawyer about my findings and how he can better comply with his obligations in the future. He deposes that the case and its impact on his employment caused a great deal of stress for him and his family and caused him to have difficulty sleeping. He says that he is committed to ensuring that he complies with the law in the future. Mr Gill submits that these matters underscore the determination he has to comply with his obligations moving forward.
3. The Ombudsman submits there has not been, and will not be, any contrition or corrective action in this matter. She submits that twice, Mr Gill's employer allowed him the opportunity to take responsibility for his actions, and twice he chose to deny making any threat. She adds that nothing has otherwise prevented Mr Gill from owning his actions, expressing remorse or apologising to Mr Copperthwaite.
4. At the hearing, Mr Gill accepted that he does not express remorse in his affidavit, and submitted that doing so would have been "entirely artificial" where he previously denied the contravening.
5. It is clear that Mr Gill has not shown contrition with respect to his contravening. He has expressed a commitment to comply with the law in the future. The Ombudsman accepts that lack of contrition is not an aggravating factor, but the absence of a mitigating factor. I approach Mr Gill's lack of contrition in that way.

1. Mr Gill has worked in the mining and maritime industry for four decades and has no prior contraventions of industrial law. There has also been no recurrence of Mr Gill's contravening in the four years that have elapsed since his contravening conduct took place. I am satisfied that Mr Gill's contravening conduct is a one-off and take this into consideration in my determination of the appropriate penalty.

1. Mr Gill relies on The Melbourne Quarter Case at [21], where Wheelahan J took the following factors into account in considering specific deterrence:

I consider that some specific deterrence of Mr Roach is also relevant given his current positions as a Union delegate and as a health and safety representative. However, specific deterrence is less significant having regard to: (1) the absence of any evidence of previous contraventions of industrial laws by Mr Roach during his long career in the building industry and as a Union delegate; (2) Mr Roach's evidence that he suffered embarrassment and that he perceives that he suffered personal and family hardship as a result of these proceedings which I consider will contribute to the deterrence of any future contravention; (3) the evidence of the training that Mr Roach has undertaken with Mr Lacy; and (4) Mr Roach's statement on affidavit that he is committed to complying with the law.

1. Mr Gill says that these factors apply equally to him. As to the first factor, and as stated at [29], there is an absence of any contravening conduct in Mr Gill's lengthy career. As to the second factor, Mr Gill deposes in his affidavit of 20 November 2025 that he feels embarrassed and has experienced hardship arising from the proceedings and its consequences. As to the third factor, Mr Gill points to his evidence in his affidavit that he met with the MUA's in-house lawyer about the findings in my liability judgment and how he can better comply with his obligations in the future. As to the fourth factor, Mr Gill refers to the statement in his affidavit that he is committed to ensuring that he complies with the law in the future. Mr Gill submits that this statement is genuine, and the weight that should be afforded to it is enhanced because he did not get a job for almost a year because of the publicity surrounding this case, and he "lost his job, a job which was secure, well-paying, and in which he took immense pride, as a result of the [contravening] conduct".
2. I accept that factors one, two and four weigh in Mr Gill's favour in the assessment of specific deterrence. However, I do not accept that the meeting with the MUA's in-house lawyer in which, in Mr Gill's words, "I spoke... about those [liability findings] and how I can better comply with my obligations in future", is analogous to the training received by Mr Roach referred to in The Melbourne Quarter Case. At [5] and [6] of The Melbourne Quarter Case, Wheelahan J describes Mr Roach's training as "formal and structured training" provided by Mr Lacy (an experienced industrial relations practitioner), who was retained by the Union to "explain to Mr Roach the reasons why his conduct ... was found to have contravened s 348 and s 349 of the [Act], and otherwise to provide training to Mr Roach that focussed on the contraventions that were found". That training involved a PowerPoint presentation specifically tailored to the training of Mr Roach, which included slides about why there are laws, the content of the rule of law, and references to freedom of association. Mr Lacy swore an affidavit annexing a report he wrote about the training which recorded the responses of Mr Roach in relation to his understanding of the relevant concepts. Mr Roach also deposed an affidavit which included statements that the training he undertook was helpful and made it easier for him to understand the law.
3. In the present case, Mr Gill's affidavit does not provide sufficient detail for me to conclude that Mr Gill underwent what might properly be called training, or to enable me to evaluate the effectiveness of the process undertaken. I have given some credit to Mr Gill for the meeting that occurred between him and the MUA's in-house lawyer, but I do not consider that meeting to be a significant matter attenuating the need for specific deterrence.
4. I consider that the four matters raised by Mr Gill reduce the need for specific deterrence. However, considering the seriousness of the contravening conduct and the lack of contrition expressed by Mr Gill, I consider that the need for specific deterrence remains high.

1. I consider that the need for general deterrence in this case is high. The need to ensure threats of this gravity do not occur is to be given significant weight. General deterrence is directed at ensuring that the penalty is sufficiently high to deter repetition by those who might be tempted to contravene the Act.

1. The Ombudsman submits that the circumstances of Mr Gill's contraventions warrant the Court ordering at or near the maximum penalty to ensure the conduct is never repeated. She submits that a penalty in the range of 85-95% of the maximum (amounting to $11,322 - $12,654) is appropriate in this case. Mr Gill submits that it is appropriate that a penalty below the middle of the range (below $6,660) be imposed.
2. In all of the circumstances set out above I consider it is appropriate to impose a penalty at the high end of the range. Taking particular account of the seriousness of the conduct and the need for specific and general deterrence, I consider it appropriate to impose a penalty of $9,324. That figure represents 70% of the applicable maximum penalty. I consider that amount is reasonably necessary to deter further contraventions of the same kind by Mr Gill and others. I consider that amount has a reasonable relationship with the theoretical maximum.
3. As explained, s 556 of the Act has the effect that, where the three contraventions arise from the same conduct, only one penalty will be imposed. I will order that Mr Gill pay a penalty of $9,324 for his contravention of s 348 of the Act.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Dowling.