APPROPRIATE PENALTIES IN THIS CASE
22 Nature and extent of the unlawful industrial action and the circumstances in which it occurred: The nature and extent of the unlawful industrial action was outlined above. However, the circumstances in which the unlawful industrial action arose deserve attention.
23 The catalyst of the unlawful industrial action was the events that occurred on 5 March 2010, when the second respondent attended a consultative committee meeting at the Port of Broome. At first, the BPA refused to allow the second respondent to attend and speak at the meeting and the meeting was postponed. However, the meeting then proceeded with the second respondent in attendance as an observer. At the conclusion of the meeting the second respondent intimated that it was fine for the BPA management to continue to act as they had done while the Port was quiet, but that he would return when it was busier and "bring the Port to its knees".
24 Then, during the second week of March 2010, the second respondent prepared and caused to be distributed among the BPA employees a flyer bearing the first respondent's logo entitled "Broome Port Authority MUA Update - Broome Port Management Lose the Plot" (flyer). The flyer set out the complaints of the first and second respondents, including that:
Management had been riding rough shod over the committee, implementing and achieving very little of what the workforce put up at the meetings and treating the committee, and therefore the workforce, with very little respect.
The management team have no respect for their own workforce and basic workplace courtesies such as consulting workers when you are going to make changes that affect them. Nor do they have the common decency to prioritise capital spending so that issues that affect the workforce are out at the very front of the line in terms of the spending priorities of the Port. Not putting the building of a room to house archived lever arch files ahead in priority of decent ablution blocks on the wharf and reasonable gate house.
We had to have a debate with the management team that it would appear to at least be reasonable to notify your workforce of changing the way they are paid to six minute increments rather than having them find out when their pay slips come through.
The Port takes jobs of workers, jobs that would keep some in work over the quiet periods, through the flick of a pen. There appears to be no understanding that informing workers of change is a far cry from actual meaningful consultation.
There appears to have been a seismic change in relation to the way in which the Port treats its own employees. It is about penny pinching and cut backs at the bottom end and an ever expanding growth of workers at the top end.
25 Although, as was agreed by the respondents, the industrial action was unlawful, I accept that it arose out of concerns for the treatment of the BPA employees. As such, the conduct of the respondents is to be contrasted with conduct carried out for arbitrary or base motives. However, I also accept that the second respondent made no attempt to follow the dispute settling procedure in cl 9 of the Agreement and, instead, the unlawful industrial action was organised before there was any attempt to negotiate with the BPA.
26 Nature and extent of any loss or damage: The strike commenced on a busy day for the BPA, with there being three vessels being worked at that time. This involved, inter alia, trucks coming and going as well as service organisations bringing chemicals, fuel and other matters to the vessels. As a consequence of the strike, there was no further work done on the vessels for the duration of the strike, and one vessel due to be worked was instead diverted to Port Hedland at a cost to the BPA of approximately $12,000.
27 Similar previous unlawful industrial action: On 31 October 2012 (simultaneously with the orders in this proceeding) both respondents were found to have engaged in conduct in contravention of s 494(1) of the WR Act, a provision which is similar in terms to s 417(1) of the FW Act: Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1521. This conduct occurred on 19 and 20 May 2009. However, the relevant orders of the Court were made after the date of the conduct with which these proceedings are concerned. For this reason, following the reasoning of Branson J in Alfred v Walter Construction Group Limited [2005] FCA 497 at [13], I do not consider it appropriate to fix the amount of the penalty to be imposed in this proceeding on the basis that the respondents engaged in the unlawful industrial action contrary to s 417(1) of the FW Act after having been found to have earlier contravened s 494(1) of the WR Act. However, nor do I consider it appropriate to significantly discount the penalty otherwise appropriate on the basis that the contravening course of conduct was an isolated instance of conduct entirely uncharacteristic of the respondents.
28 Size of the first respondent: No party seeks to rely on the size or financial position of the first respondent in relation to penalty.
29 Deliberate nature of the unlawful industrial action: Clearly, the conduct of the second respondent in relation to the unlawful industrial action involved deliberate acts.
30 Involvement of senior management: As mentioned, the second respondent was at all material times employed as the assistant secretary of the Western Australian branch of the first respondent. There is no suggestion, however, that other senior officials were involved in the unlawful industrial action or had any direct knowledge of it. Further, there is no suggestion that the first respondent had direct knowledge of the conduct that the second respondent engaged in on the relevant dates (although, as mentioned, pursuant to s 793(1) of the FW Act the second respondent's conduct is taken to have been engaged in for and on behalf of the first respondent).
31 Contrition: Although there is no evidence of any expression of contrition by the respondents, lack of contrition is not an aggravating circumstance that justifies an increase in the level of the penalty imposed (however, contrition in the form of an apology can operate to reduce a penalty, at least where it can be seen to render it unlikely that the conduct will be repeated in the future): BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining & Energy Union [2001] FCA 336 at [10]; Cahill v Construction, Forestry, Mining and Energy Union (No 4) [2009] FCA 1040; (2009) 189 IR 304 at [87].
32 Cooperation with enforcement authorities: The respondents have cooperated in the proceedings before this Court by agreeing with the applicant regarding:
a statement of agreed facts, which includes admissions which establish the contraventions of s 417(1) of the FW Act; and
the proposed penalties.
By taking this action, the respondents have helped to avoid the time and expense associated with what may otherwise have been a lengthy trial, as well as the imposition on a number of potential witnesses to attend Court to give evidence.
33 However, this cooperation only occurred just over one month prior to the trial and after the applicant had filed extensive affidavit evidence. In this respect, the comments of Stone and Buchanan JJ in Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383 (Mornington Inn) at [76]-[77] are instructive:
… in our view, it should be accepted … that a discount should not be available simply because a respondent has spared the community the cost of a contested trial. Rather, the benefit of such a discount should be reserved for cases where it can be fairly said that an admission of liability: (a) has indicated an acceptance of wrongdoing and a suitable and credible expression of regret; and/or (b) has indicated a willingness to facilitate the course of justice.
A respondent who admits liability will spare itself the unnecessary cost of a contested hearing. Its motivation, therefore, should not be regarded as unduly altruistic. Depending on the stage at which liability is admitted it may or may not relieve an applicant of the bulk of the cost of preparing for a trial.
34 As mentioned, there is no evidence of any express contrition by the respondents. In Mornington Inn, Stone and Buchanan JJ, at [78], commented that:
In the circumstances of the present case, the admission of liability 2 weeks before the trial was not evidence of contrition or remorse or, except in the most formal of senses, an indication of acceptance of wrongdoing. It would have been open to the primary judge, in our view, to refuse any discount for the admission of liability. There is no basis, therefore, upon which to complain about the allowance of a 'modest' discount of 10%. It was more than ample in the circumstances of this case.
Therefore, given that the respondents only admitted liability just over one month prior to the trial and there was no evidence of any contrition, I am of a similar view to that expressed by Stone and Buchanan JJ in Mornington Inn: see also Alfred v Walter Construction Group Limited [2005] FCA 497 at [15]; Alfred v Wakelin (No 1) [2008] FCA 1455 at [37].
35 Deterrence: Finally, the penalty arrived at by the Court must reflect the need for specific and general deterrence. Specific deterrence is directed to ensuring that the respondents are not prepared to engage in similar unlawful industrial action in the future, while general deterrence is directed to preventing similar unlawful industrial action by like-minded persons or organisations.
36 In relation to specific deterrence, it is relevant to note that there is the lack of evidence of any contrition on the part of the respondents, as well as the fact that the respondents only cooperated with the applicant at a late stage, which suggests that specific deterrence is likely to be necessary to prevent future unlawful industrial action.