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[2007] FCAFC 65
Federal Court of Australia (Full Court)
2007-05-14
Jessup JJ
Original judgment source is linked above.
Introduction 119 This is an appeal from a judgment of the court given on 11 September 2006, in which applications for orders under s 187AD of the Workplace Relations Act 1996 (Cth) ('the Act') were dismissed. The appellant (the applicant below) was an inspector appointed under s 84 of the Act. The first respondent, B & P Caelli Constructions Pty Ltd, was a building contractor. The second respondent, Construction, Forestry, Mining and Energy Union ('the union') was an organisation of employees registered under the Act. The third respondent, Illia Crnac, was a member of the union, and a shop steward on a building site at Port Melbourne at which other members were engaged. The fourth respondent, Elias Spernovasilis, was an organiser in the employ of the union. 120 On 1 August 2003, a construction worker who was a member of the union died as a result of an industrial accident at Shepparton. At the time, the union had a written policy concerning fatalities on building sites. It provided that mass meetings would be held on all sites in the industry on the day following a fatality, to report on the incident to union members. Productive work would stop while a full safety audit was conducted by the safety committee on each site, and all occupational health and safety problems would be rectified. Pursuant to that policy, a number of stoppages of work were held on building sites in Victoria on 5 and 6 August 2003 in response to the death at Shepparton. The present case concerns stoppages on those dates at the site of the Concept Blue Apartment Project ('the Concept Blue site'), where the first respondent was engaged by the builder, Multiplex Limited. 121 On 5 August 2003, the first respondent had 54 employees working on the Concept Blue site. They commenced work at 7.00 am but stopped work at 8.30 am pursuant to the union policy. A safety audit was conducted on the site. The first respondent's employees did not return to work that day. On 6 August 2003, the first respondent's employees arrived at the Concept Blue site, but did not commence work until 10.00 am. 122 At first, the first respondent did not pay its employees for the period of the stoppages on 5 and 6 August 2003. On 25 and 26 August 2003, the union placed bans upon various aspects of the work of the first respondent at an otherwise unconnected building site in Port Melbourne, where the third respondent was a shop steward. The bans were in support of a claim that the first respondent pay its employees for the time that they did not work on 5 and 6 August 2003 on various building sites, including the Concept Blue site. At a meeting on 26 August 2003 with a director of the first respondent, the third and fourth respondents told the director that the first respondent was the only employer not to have paid workers for the stoppages on 5 and 6 August, and that the union would not let the matter go. The first respondent agreed to pay its employees for the time of the stoppages on 5 and 6 August 2003 at the Concept Blue site. 123 Those payments were made. In relation to the stoppage on 5 August 2003, 50 employees were paid a total of $7,601.23. In relation to the stoppage on 6 August 2003, 51 employees were paid a total of $3,187.80. Most of the employees who had stopped work on 5 August were also involved in the stoppage on the following day. 124 The present proceeding was commenced on 24 December 2004. The appellant alleged that the first respondent contravened s 187AA of the Act by making payments to employees in relation to periods during which they had engaged in industrial action. It alleged that the union, and the third and fourth respondents, contravened s 187AB of the Act by making claims against the first respondent for the payment of its employees at the Concept Blue site during periods when those employees engaged in industrial action, and by organising, or threatening to organise, industrial action against the first respondent with intent to coerce it to make such payments. 125 The proceeding before his Honour was conducted on the basis of agreed facts. The appellant relied upon a statement of agreed facts as between the appellant's predecessor as applicant in the proceeding and the first respondent dated 26 July 2005, and upon a separate such statement as between the appellant and the union and the third and fourth respondents dated 4 April 2006. In each case, as the trial Judge found, the facts agreed were sufficient to establish contraventions of ss 187AA and 187AB. In the case of the first respondent (but not the other respondents), it was agreed as between the appellant and that respondent that a penalty of $6,000 be imposed in respect of contraventions of s 187AA, but that the first respondent not be obliged to pay that penalty if, for a period of 12 months after the court's order, it had not been adjudged to have breached any provision of the Act. 126 In the circumstances, the trial Judge was required to consider whether the agreement between the appellant and the first respondent that the latter should pay a penalty of $6,000 was within the permissible range (see Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] ATPR ¶ 41-993 at [53]), and to consider what, if any, penalties should be imposed upon the union, and upon the third and fourth respondents. As to the first respondent, his Honour held that the agreed penalty of $6,000 was not within the permissible range and, exercising his own discretion on the matter, determined that no penalty should be imposed. As to the other respondents, his Honour likewise determined that no penalty should be imposed. In each case, his Honour was of the view that no useful purpose would be served by granting the appellant purely declaratory relief and, in the result, he dismissed his application. 127 In the appeal, the appellant accepted that the imposition of a penalty in the circumstances of an established contravention of a statutory norm was pre-eminently a discretionary function to which the well-known principles of House v R (1936) 55 CLR 499 applied. He submitted that a number of considerations by which his Honour permitted himself to be influenced were incompatible with the relevant objects of the Act, and that the imposition of no penalty at all on the parties involved in the contraventions at the Concept Blue site was a manifestly inadequate punishment in the circumstances.
Contraventions of s 187AA 128 I shall commence with the appellant's case against the first respondent for a contravention of s 187AA of the Act. Subsection (1) thereof relevantly provided that an employer - … must not make a payment to an employee in relation to a period during which the employee engaged, or engages, in industrial action … where one or more of certain conditions was or were satisfied. As I have said, it was common ground that the first respondent contravened this provision by the payments it made to employees in relation to the stoppages on the Concept Blue site on 5 and 6 August 2003. 129 In Mobil Oil, the Full Court considered NW Frozen Foods Pty Ltd v ACCC (1996) 71 FCR 285, and extracted therefrom a number of propositions ([2004] ATPR ¶ 41-993 at [53]), one of which was that set out in par [6] of the reasons of the trial Judge in the present matter, namely: Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The question is whether that figure is, in the Court's view, appropriate in the circumstances of the case. In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if within the permissible range. Neither in NW Frozen Foods nor in Mobil Oil did the Full Court expand on the meaning of the phrase "permissible range". I consider that the phrase refers to a range which would be permitted by the court, that is, a range within which the penalty is neither manifestly inadequate nor manifestly excessive. 130 In the judgment under appeal, there was no suggestion that the $6,000 agreed between the appellant and the fist respondent was manifestly inadequate. The lower end of the range need not, therefore, be further considered. His Honour was concerned with the upper end of the range. He considered a number of judgments of single Judges of the court in which penalties had been imposed for contraventions of s 187AA in the context of the death at Shepparton on 1 August 2003. There were four such judgments. Chronologically, the first was Ponzio v BVM Builders Pty Ltd (2005) 146 IR 375, where payments were made to two employees. Although, like the present case, BVM Builders involved industrial action on 5 and 6 August 2003, it does not appear from the court's reasons whether there were two or four contraventions of s 187AA. A penalty of $200 was imposed. If there were two contraventions, this was $100 per contravention; if there were four contraventions, this was $50 per contravention. 131 The second judgement was Pine v Austress Freyssinet (Vic) Pty Ltd [2005] FCA 583, where payments were made to four workers. In its reasons, the court expressly treated the matter as involving four contraventions, and imposed a penalty of $200 for each, making a total penalty of $800. 132 The third judgment was Pine v Multiplex Constructions (Vic) Pty Ltd (2005) 58 AILR 100 - 433, where payments were made to 10 employees. The court referred to BVM Builders and to Austress, and noted that penalties of $100 and $200 respectively for each contravention of s 187AA had been imposed in those cases. The court treated the matter before it as involving 10 contraventions, and imposed a penalty of $4,000. As the trial Judge noted in the present case, the court justified imposing a higher penalty per contravention than had been done previously upon the basis that the employer - … was the head contractor; it is a large corporation with ready access to legal advice concerning its obligations under the Act; it had adopted a practice of paying employees who stopped work during safety audits; and it either was aware, or ought to have been aware, that its practice was unlawful. 133 The fourth judgment in this group was Ponzio v Maxim Electrical Services (Vic) Pty Ltd (2006) 152 IR 347, where payments were made to 27 employees. There is nothing in the reasons of the court on that occasion to suggest that more than 27 contraventions of the section were involved. Taking account of the totality principle, the court imposed a total penalty of $900, which would represent $33.33 per contravention. 134 The trial Judge referred also to a number of decided cases involving breaches of s 187AA in the context of stoppages occurring on 5 and 6 August 2003 because of the death at Shepparton, and in which, for various reasons, no penalties had been imposed. His Honour concluded that, in situations where there were "20 to 30 contraventions in generally similar circumstances", the penalties ranged up to a maximum of $900 (that being a reference to Maxim). His Honour then said: In several important respects, the present case is similar to the circumstances addressed by the authorities just mentioned. The first respondent is a first time contravenor. It is unlikely to contravene again. It has cooperated with the applicant and not resisted the application. The circumstances of the contravention are at the lower end of seriousness, and the first respondent has been punished by the cost, time and trouble involved with defending the proceeding. The circumstances of the present case differ from previous authorities in two notable respects. First, there are a greater number of contraventions, and second, whilst the contraventions were deliberate, the first respondent initially did not make the payments and only did so later under pressure from the other respondents. His Honour concluded that the permissible range of penalties for the circumstances of the present case was up to a maximum of $3,000. I take it that he derived this maximum by discounting the sum of $4,000 imposed in Multiplex by reason of the absence from the present case of the specific considerations favouring a higher penalty to which the court referred in that case. 135 Each time an employer makes a payment to an employee of the kind referred to in s 187AA, the employer contravenes the section. It was agreed as between the appellant and the first respondent that the employees who stopped work on 5 August 2003 were paid for the period of that stoppage on or about 26 August 2003. There was, however, no agreement as to the timing of the payment which related to the stoppage on 6 August 2003. Neither did His Honour make a finding on the matter. In the Statement of Claim, it was alleged that the payment which related to 6 August 2003 was made on or about 13 August 2003. If so, it is difficult to see how that might have been in response to the claims made by the other respondents on 25 and 26 August 2003. There was no Defence (at least that was included in the appeal papers). In his reasons, the trial Judge noted that the appellant had contended that "each of the 101 payments made constituted a separate contravention of s 187AA". Although he did not say so in terms, it is implicit in his Honour's approach that each payment amounted to a separate contravention, and there is nothing in his Honour's reasons that would indicate a finding of some number of payments other than 101. 136 Whether a payment is made to an employee, and if so, whether that payment relates to a period during which the employee engaged in industrial action, are questions of fact. A single payment may relate to two or more such periods, and if so, there could only be one contravention. By contrast, a single period of industrial action may be covered by several payments, and if so, there will be as many contraventions as there were payments. Whether particular industrial action occurs during a single period, or during separate periods, will also be a question of fact. For my own part, I do not regard it as self-evident that every day upon which industrial action occurs should be regarded as a separate "period". In the present case, for example, I consider that an employee who stopped work on 5 August 2003 and did not resume work until 10.00 am on 6 August 2003 should be regarded as having engaged in industrial action during one period only. If that period were broken by a period during which the employee performed work normally, there would then have been two periods of industrial action. However, as I have said, what matters is not the number of periods, but the number of payments. 137 Adopting his Honour's implicit assumption that there were 101 contraventions in the facts of the present case, the agreed overall figure of $6,000 would represent $59.41 per contravention. Subject only to the mitigating and other discretionary considerations which his Honour took into account, and to the operation of the totality principle, that figure could on no fair view of the matter be regarded as excessive. It is to those two qualifications that I next turn. 138 I consider first the mitigating circumstances in the case. It is clear that his Honour took a particular view of the facts, and of the scheme of Part VIIIA of the Act, that inclined him to favour an outcome at the very lowest extreme of penalties that might possibly have been imposed. He referred to a range of conventional and, with respect, unexceptionable considerations which would favour leniency, namely: · the first respondent co-operated with the appellant; · the first respondent had not been involved in any prior contravention of relevant provisions of the Act; · the first respondent had reviewed its strike pay procedure, and was aware that claims for lost time for health and safety reasons had to be scrutinised carefully; · the payments in the present case were made under significant pressure from the other respondents; · since August 2003, the first respondent had resisted making payments in contravention of s 187AA of the Act (on four separate occasions to which his Honour referred); · the fact and conduct of the legal proceeding itself had been costly to the first respondent. 139 As against those considerations, these were no inadvertent contraventions of s 187AA. Indeed, apparently conscious of its legal obligations, the first respondent for a time resisted the claims of the other respondents that employees should be paid for the stoppages at the Concept Blue site on 5 and 6 August 2003. While it was entitled to credit for that resistance, the fact is that it consciously took a step which involved a breach of the law. 140 His Honour then moved, I consider with respect, into more controversial territory. He said that it was important "to locate the contravention within the range of conduct sought to be addressed" by s 187AA. He was not assisted by an affidavit upon which the appellant relied because it did not "address the specific issue of responses to fatalities in the building industry". He referred to a passage in the final report of the Royal Commission into the Building and Construction Industry which provided certain statistics as to fatalities in that industry, and which stated that there was only one industry with a higher risk of fatality than the building and construction industry. His Honour continued: The concern of workers in the industry in ensuring safe workplaces can be readily understood. It is easy to accept that a fatality on a site in the industry, even if not on the site on which a particular worker is engaged, raises immediate feelings of insecurity and threat. No doubt these responses explain the establishment of the union policy which required that mass meetings be called on all sites in the industry in Victoria to explain any such incident, and a stoppage of work for the period necessary to undertake a safety audit on sites. It is reasonable to expect that employers would fund the taking of steps necessary to assure their workforces of the safety of the workplaces in view of the shock engendered by the death of a fellow worker in the industry. However, the strict terms of s 187AA do not permit employers to pay workers for the period during which the safety audit is conducted if work is stopped. It may be that such a harsh result was not contemplated by Parliament when the section was enacted. It is probable that Parliament had in mind that the law would stop payments made for stoppages which were designed to put undue pressure on employers in support of industrial claims for increased pay or improved conditions. In those circumstances, it generally would not be reasonable to expect employers to fund the industrial action taken against them. Even though the text of the section covers the present circumstances where payments were made in respect of stoppages undertaken to ensure safety on building sites in response to a fatality in the industry, the making of payments in those circumstances is at the lower end of the spectrum of seriousness of the conduct intended to be addressed by s 187AA. 141 Neither in the passage to which I have just referred, nor elsewhere in his reasons, did his Honour refer to the statutory definition of the expression "industrial action" by reference to which the norm of conduct in s 187AA was established. In s 4(1) of the Act, "industrial action" was defined so as to cover various categories of stoppages, bans and limitations, but did not include action by employees that was authorised or agreed to by the employer in question, or - … action by an employee if: (i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and (ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform. The definition was, in my view, directly relevant to the discretionary considerations to which the trial Judge referred. With respect to his Honour, I consider it to be a misstatement to say that s 187AA does not permit employers to pay workers for a period during which a safety audit is conducted. If an employer agrees to a stoppage of work for such a period, the stoppage would not be "industrial action" as defined, and s 187AA would have no application. This point - to which I shall refer later in the context of s 187AB - may be considered somewhat tangential to his Honour's approach to penalties in the case of the first respondent, but more significant questions, in my respectful view, arise with respect to the consistency of his Honour's discretionary considerations with the operation of s 187AA in circumstances where the cause or reason for the stoppage was in some way related to occupational health or safety. 142 On my reading of it, the Act has given specific attention to the circumstances in which a stoppage of work will not be regarded as "industrial action", where the stoppage is related to occupational health and safety. Only action by an employee is excluded from the definition upon that ground, and even that action is excluded only if it is based upon a reasonable concern by the employee about an imminent risk to his or her health or safety. The exclusion, and the limitations in the exclusion, are carried through into provisions of the Act which use the defined term, including s 187AA. It seems to me, with respect to his Honour, that the legislature, by establishing those limitations, must be taken to have turned its mind to the question of where the line should be drawn between permissible, and impermissible, health and safety related stoppages. Far from being probable that the legislature had in mind that s 187AA would apply only to stoppages "which were designed to put undue pressure on employers in support of industrial claims for increased pay or improved conditions", it is manifest that the legislature intended that the section should apply to stoppages related to the subject of health or safety, including those thought necessary to conduct a safety audit, save in the limited circumstances of the employee in question having a reasonable concern about an imminent risk to his or her health or safety. I consider that the discretionary considerations to which his Honour referred in the passage which I have quoted above were incompatible with the scheme and objects of s 187AA, when the scope of that section is properly understood with reference to the definition of "industrial action" in the Act. His Honour's statement that it would be reasonable to expect employers to "fund" the conduct of a safety audit may be a view which is held in some parts of the industry, but it is not, at least expressed in the broad terms employed by his Honour, a view which was implicitly bespoken by the legislation under which his Honour was obliged to consider the matter of penalties. 143 Immediately following the paragraph which I have quoted above, his Honour said: There is another consideration which is related to the level of seriousness of the contravention. The Court must take care that the fixing of penalties does not bring the law into disrepute. If penalties are imposed on employers who pay workers for stoppages which reasonable people would see as understandable and justified in all the circumstances, the law itself will be seen to be out of step with reasonable community expectations. Then, instead of prosecutions enhancing law abiding behaviour, they will generate disrespect for the law. The point may be illustrated by the homely example of the actions of the police at times waiting with speed detectors at the bottom of a hill where, although in a 60 kilometre zone, it is impossible for most drivers, driving responsibly and carefully, to avoid exceeding the speed limit. Those drivers who are caught and fined do not accept that they have done anything wrong. Rather they think the law is an ass. Given the significance of the exclusion in the definition of "industrial action" to which I have referred, I consider, with respect, that his Honour was in error to propound a class of "reasonable people" in the community who would regard industrial action which did not come within that exclusion as "understandable and justified in all the circumstances". Again, although that may be a view which some hold, it is not, in my opinion, a view which may, as a matter of law, inform the exercise of a judicial discretion as to the appropriate penalty to be imposed for a breach of s 187AA. I consider it would be antagonistic to the achievement of the objects of that section if the court were to devise for itself a community standard which had the practical effect of collapsing the distinction between stoppages which were, and stoppages which were not, properly regarded as industrial action within the meaning of the Act. 144 As a result of his Honour's consideration of the facts before him, he took the view that the first respondent's conduct was at the "lower end of the spectrum of seriousness" for conduct covered by s 187AA. For the reasons I have attempted to explain above, I consider that his Honour's discretion miscarried in this regard. I consider that the stoppages at the Concept Blue site on 5 and 6 August 2003 were squarely within the range of conduct to which s 187AA was addressed, and that the suggestion that the first respondent should have "funded" those stoppages, even as a discretionary consideration, was antagonistic to the achievement of the objects of the statute. 145 For the above reasons, his Honour's disposition of the appellant's case under s 187AA cannot stand. That does not mean, however, that the appeal must necessarily succeed. As I have said, the trial Judge recognised that this was a case in which the totality principle should apply. His Honour said that the principle required "that in imposing penalties for numerous offences, the penalties in aggregate are just and appropriate … ." For that proposition, his Honour relied upon CPSU v Telstra Corporation Limited (2001) 108 IR 228, 230 [7]. In CPSU, Finkelstein J said that, in a case of multiple breaches punishable by pecuniary penalty, it would be - … necessary to resolve upon the appropriate total penalty, dividing that penalty by the number of individual contraventions and record that amount as the penalty for each contravention, whether or not the sum produced might be regarded as an inappropriate individual penalty. With respect to his Honour, I do not believe this is the correct approach. The position was, in my view, correctly stated by Goldberg J in ACCC v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36, 53: The totality principle is designed to ensure that overall an appropriate sentence or penalty is appropriate and that the sum of the penalties imposed for several contraventions does not result in the total of the penalties exceeding what is proper having regard to the totality of the contravening conduct involved: McDonald v R (1994) 48 FCR 555; 120 ALR 629. But that does not mean that a court should commence by determining an overall penalty and then dividing it among the various contraventions. Rather the totality principle involves a final overall consideration of the sum of the penalties determined. In Mill v R (1988) 166 CLR 59; 83 ALR 1 the High Court accepted the following statement as correctly describing the totality principle: The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate". The principle has been stated many times in various forms: "when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong"; "when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences". As Spender J pointed out in McDonald v R at FCR 556; ALR 631: Implicit in that statement is that the sentence for each offence should be "properly calculated in relation to the offence for which it is imposed". It is explicit in this statement that a sentencer or penalty fixer must, as an initial step, impose a penalty appropriate for each contravention and then as a check, at the end of the process, consider whether the aggregate is appropriate for the total contravening conduct involved: McDonald v R at FCR 563, per Burchett and Higgins JJ. The position as stated in Mill, on which Goldberg J relied, was described by Gummow, Callinan and Heydon JJ as the "orthodox, but not necessarily immutable, practice" in Johnson v The Queen [2004] 205 ALR 346, [26]. 146 In a setting which did not involve an agreement on penalty, it would, therefore, be necessary to commence with an assessment of an appropriate penalty for each contravention, paying due regard to such mitigating factors as there were. In the judgments to which the trial Judge referred, it seems to have been accepted that, absent strong mitigating circumstances such as sheer inadvertence, a penalty of about $200 for each contravention of s 187AA on the facts existing on 5 and 6 August 2003 could not be regarded as excessive. On the facts of the present case, and having regard to what I have described as the conventional mitigating circumstances referred to by his Honour, I do not think that a penalty of $200 for a single contravention would have been excessive. It may not have been the penalty that I would have imposed, but on no view might it have been regarded as outside the permissible range. If that penalty had been imposed for each of the contraventions which came before his Honour, a total of $20,200 would be the aggregate result. Manifestly the application of the totality principle was then required. 147 The question then becomes: if a Judge were determining the appropriate aggregate penalty in the circumstances posited, could it be said that the utilisation of a discount factor of some 70% by way of application of the totality principle would still produce a final penalty figure that should be regarded as manifestly excessive? In my respectful view, the question needs only to be asked in this form for a negative answer to be obvious. It would follow that $6,000 should not have been regarded as outside the range of penalties that could have permissibly been imposed on the first respondent in the circumstances of the present case. 148 I would allow the appeal, and make the orders which the appellant, with the agreement of the first respondent, sought at trial. I would require the penalty to be paid four weeks after the expiration of the 12-month period referred to, and would commence that period at the date of the judgment of the trial Judge, 11 September 2006.
Contraventions of s 187AB 149 The appellant's case against the union and the third and fourth respondents was that, in contravention of s 187AB of the Act, they made a claim for the first respondent to make payments to its employees in relation to the period or periods on 5 and 6 August 2003 during which they engaged in industrial action at the Concept Blue site, and that they organised or engaged in, or threatened to organise or engage in, industrial action against the first respondent with intent to coerce it to make those payments. The union and the third and fourth respondents admitted that the facts to which they agreed demonstrated that they had made such a claim, but they did not admit that those facts demonstrated that they had organised or engaged in, or threatened to organise or engage in, industrial action with that intent. His Honour found that they had done so. Each of the substantive allegations which the appellant made against the union and third and fourth respondents was, therefore, established. 150 In mitigation, his Honour took into account the circumstance that the relevant respondents had not previously contravened s 187AB of the Act (although he noted that the union had contravened other provisions of the Act). His Honour noted also that the union had, in consequence of the threat of proceedings under s 187AB, amended its policy so that in future, when there was a death in the industry, safety audits would take place while normal productive work continued. His Honour held that there was a probability that the union (and, implicitly, also the third and fourth respondents) would not commit contraventions of s 170AB in the future. As to the third and fourth respondents specifically, his Honour also took account of the circumstance that they were acting as servants or agents of the union, and for the purpose of giving effect to the union policy concerning fatalities on building sites. 151 In addition to the mitigating circumstances to which I have referred, however, his Honour said: There are several other factors which favour mitigation. As previously explained in these reasons, that the stoppages responded to a fatality in the building and construction industry differentiates the stoppages from those taken in support of better wages or conditions, and thereby render the payments less culpable than payments for stoppages arising out of material self interest alone. In addition to the nature of the stoppage, the history of the establishment of the union policy provides a compelling reason to treat this matter with leniency. The history was explained by Mr Martin Kingham, the state secretary of the union, in an affidavit sworn on 12 April 2006. The applicant did not seek to cross-examine Mr Kingham on his affidavit. His evidence stands uncontradicted. He deposed in part as follows: 3 … at the relevant periods the general practice in the construction industry that following a death of a construction worker that a safety audit of the site is conducted and this is followed by safety rectification work. This practice is generally agreed to by the employers and the employees are paid while this process is undertaken. … 4 The historical reasons behind the policy which lead to this prosecution dates back to the spate of deaths which occurred in the construction industry in 1999. During the course of 1999 there were 15 deaths of construction workers in the industry. This was an issue of major concern for the union and our members. At this time the CFMEU Executive, both Construction & General and the FEDFA Divisions determined, that to highlight the large number of deaths, on each occasion of a death in the industry there would be a 24 hour stoppage of work across the industry. Payment was not sought in relation to these stoppages as it was a matter of principle and determined to highlight the serious issue. 5 The reason behind this practice was twofold. Firstly, as a sign of respect for a dead worker and secondly, to try to highlight the issue to the Victoria State Government. The reason that the issue was to be highlighted to the State Government was to try to put pressure on them to engage more Worksafe inspectors as the union believed that many of the deaths occurred on smaller sites in the suburbs where safety standards was not as good as the bigger construction projects. The CFMEU believed that if there was a campaign by the State Government to target the smaller sites then it may assist in improving the safety standards on these sites and prevent further deaths of our members. 6 I was involved in discussions with the Workcover Minister in 2000 to resolve this issue. As a result of those discussions the Minister eventually agreed to engage more Worksafe inspectors. During the course of 2001 the State Government agreed to put on more Worksafe inspectors. 7 I believe that the practice of having a 24 hour stoppage on the occasion of each construction industry worker's death assisted in the union achieving our desired result which was the engagement of more Worksafe inspectors and the re-establishment of a separate construction industry inspectorate. 8 Whether as a consequence of the introduction of more Worksafe inspectors and a designated construction inspectorate or due to the union highlighting the safety issues in the industry there has been a decrease in the number of deaths in the industry in Victoria since that time. 9 Accordingly, the practice I have described was modified after discussions between the union and a number of the major builders in the State. Those discussions took place in the forum known as the Victorian Building Industry Agreement Consultative Committee ("VBIA Consultative Committee"). Representatives of the all the construction unions and construction companies attend the VBIA Consultative Committee. 10 I recall that some of the employer representatives, including Laurie Cross from the Master Builders' Association, made very strong representations to the VBIA Consultative Committee that the old practice penalised employers who had not done anything wrong but were being punished just because there was a death in the industry. I also recall that major employers were in favour of changing the practice to having the site safety audit and then undertaking the safety rectification work and the members not being disadvantaged, that is they would be paid, while the process was being undertaken. In this case they may only lose up at a couple of hours of productive work in most instances rather than a day of lost production. 11 The CFMEU representatives at those discussions, including myself, could see sense in what the employer representatives said and agreed to amend the practice in the manner that they suggested. 12 As a consequence of those discussions a new practice was agreed to. The new practice would be that a site safety audit would be conducted while the members did not perform any productive work. During the conduct of the site safety audit any necessary safety rectification work would be undertaken. When areas of a site were deemed to safe them [sic] normal productive work would recommence. Also there would be a report back meeting to the members engaged on each project to inform them of the nature of the death and what assistance that the union would be taking or seeking on behalf of the deceased member. For instance, if there is a young family who is involved then usually there would be a levy or donations of the workers on the site to help out the family of the deceased worker. 13 This new procedure was eventually agreed to during the course of 2002. Since that time the employers have generally complied with the practice or agreement that was reached through the VBIA Consultative Committee process. In these passages of his reasons, his Honour effectively carried forward into his consideration of penalties under s 187AB the matters to which he had had regard in dealing with the appellant's case against the first respondent under s 187AA, including the observation that reasonable people would see it as understandable and justified that stoppages should occur in circumstances of the kind obtaining at the Concept Blue site on 5 and 6 August 2003. Additionally, and at least in part to underline the wisdom of that approach, his Honour relied upon the history of the development of the union policy as explained by Mr Kingham in his affidavit. He regarded that as "a compelling reason to treat this matter with leniency". 152 To the extent that his Honour carried forward into this part of his reasons the considerations about the reasonableness of employers paying their employees for time spent engaging in industrial action upon which he relied in dealing with the appellant's case against the first respondent, I likewise consider, for the same reasons as I have set out above, that he misdirected himself as a matter of law. To the extent that he regarded the union policy, and the historical development thereof, with approbation, I think that his Honour failed to take account of a particular feature of the definition of "industrial action" in the Act, to which I shall next turn. 153 As I have mentioned in par 141 above, work stoppages and the like which were agreed to by the employer in question were not "industrial action" as defined, and were not the subject of the prohibitions in s 187AB of the Act. The provisions of Part VIIIA of the Act upon which the appellant relied were in force during all of the periods referred to by Mr Kingham in his affidavit. In that affidavit, Mr Kingham made it quite clear that the operation of the union policy was agreed to by representatives of employers in the industry. I can think of no reason to assume either that the union or that those representatives would have contemplated a protocol for safety audits and the like that necessarily involved a breach of the law. Because of the exclusion from the definition of "industrial action" to which I have referred, there was and is a means by which that protocol could have been implemented in practical situations, namely by engaging in stoppages and the like only where the union had obtained the agreement of the employer concerned. 154 By contrast, it was common ground in the present case that what occurred on the Concept Blue site on 5 and 6 August 2003 was industrial action as defined. There was no suggestion that the first respondent had agreed to the taking of that industrial action. With respect to his Honour, I cannot understand why the history of the development of the union policy given by Mr Kingham, and his emphasis upon the agreement of employers in that regard, should have been regarded as having any relevance to a practical situation in which agreement had not been obtained from the employer concerned. In his reasons for judgment, his Honour did not advert to the significance of the relevant exclusion from the definition of "industrial action" in the Act. In this respect, I consider that he failed to take into account a circumstance which was not only material to the exercise of his discretion on the matter of mitigation, but which was, in my assessment of the matter, fundamental. 155 I consider, therefore, that the determination by his Honour that no penalty should be imposed on the union, or on the third and fourth respondents, cannot stand. 156 As was the case under s 187AA, it is necessary to determine how many contraventions of s 187AB were established on the agreed facts and the findings of the trial Judge in the present case. For these purposes, it is necessary to consider the actual words of subs (1), which were as follows: An organisation, or an officer, member or employee of an organisation, must not: (a) make a claim for an employer to make a payment to an employee in relation to a period during which the employee engaged, or engages in industrial action; or (b) organise or engage in, or threaten to organise or engage in, industrial action against an employer with intent to coerce the employer to make such a payment. Dealing first with par (a), the appellant apparently contended before his Honour that the claims made by the union and the third and fourth respondents should be regarded as being the same in number as were the number of payments to individual employees which would have been necessary to comply with the claims. In the facts of the present case, if 101 payments were claimed, the court should, according to the appellant, approach the matter as though 101 claims had been made. 157 Under the actual facts to which the parties agreed, the only evidence of a claim related to the events of 26 August 2003. Although there was industrial action on the Port Melbourne site on 25 August 2003, the parties did not agree to any fact whereby there was a claim made on that day. Neither do I consider that the facts as agreed would sustain any conclusion other than that there was, factually, a single claim on 26 August 2003. The relevant paragraph in the agreed facts was as follows: Mr Spernovasilis and Mr Crnac then told Mr Caelli that they wanted him to agree that Caelli Constructions would pay its employees for the time which they did not work on 5 August 2003 and/or 6 August 2003. 158 Consistently with the approach which I have taken in relation to s 187AA, I consider the questions whether there was a claim, and if so how many claims there were, to be matters of fact. If the fact is that the union made a single claim covering a multiplicity of employees, one contravention only would, in my view, have occurred. That the reference in par (a) to "a payment" may be read, without any distortion of the sense, as extending also to "payments" is, I consider, the result of a conventional application of s 23 of the Acts Interpretation Act 1901 (Cth). These were indeed the facts in the present case: one claim was made, albeit that a multiplicity of payments were thereby claimed. It was agreed by the union and by the third and fourth respondents that they each made such a claim. 159 Turning to par (b) of s 187AB, according to the agreed facts: · At 12.30pm on 25 August 2003 the third respondent placed a ban on the use of forklifts at the Port Melbourne site; · At 2.00pm on 25 August 2003 the union placed bans on access to balconies where hand-rails installed by the first respondent existed at the Port Melbourne site; · At 7.00 am on 26 August 2003 the third respondent placed bans on the use of forklifts at the Port Melbourne site. His Honour said: The facts agreed between the applicant and the first respondent cannot be used to establish a contravention of s 187AB by the second, third and fourth respondents. However, it would be inappropriate for the Court to proceed on the basis of agreed facts between different parties in the same proceeding if the facts agreed between the different parties were inconsistent. In this case the agreed facts are not inconsistent. The agreement between the applicant and the first respondent asserts that the third and fourth respondents made threats. The agreement between the applicant and the second, third and fourth respondents is silent on the subject. I infer from the circumstances in which the bans were imposed and lifted and the discussions which accompanied those events, that the third and fourth respondents intended to pressure the first respondent into making the payments. The applicant has discharged the onus of establishing a contravention of s 187AB(1)(b) as alleged. Thus it was established on the agreed facts that three bans were placed upon particular aspects of work being done by employees of the first respondent on 25 and 26 August 2003 at the Port Melbourne site. The passage from his Honour's reasons set out above seems to sustain the conclusion that each of the union and the third and fourth respondents was in some way involved in the imposition of each of those bans, and thereby organised industrial action. On any view his Honour held that the industrial action was organised with the intent proscribed by s 187AB(1)(b) of the Act. However, despite indications to the contrary appearing in the general introductory parts of his Honour's reasons, he makes no specific finding, and the agreed facts do not establish, that any of these respondents made any threat as to future action. 160 In the circumstances, I consider that the question of penalties should be approached on the basis that there was a contravention of par (a), and three contraventions of par (b), by each of the union and the third and fourth respondents. 161 That brings me to the determination of the penalties for these contraventions. I shall commence by treating each contravention as a separate entity. Although, as I have held, each relevant respondent made only one claim, that claim related to about 50 employees, which I consider to be a significant number in the circumstances. The claim, and therefore the contravention, was serious. Next, I consider that the contraventions were wilful. The respondents' conduct constituted by the claims, and supported by the industrial action, was deliberate and determined. The fact that the first respondent was, apparently, the last employer to agree to the making of the payments in question gives rise to the inference, I consider, that these respondents were fully conscious of the nature of the conduct in which they engaged and of the first respondent's disinclination, unless forced, to make payments in contravention of s 187AA. 162 It is apparent from Mr Kingham's affidavit that the union is a substantial and sophisticated industrial organisation. It participates in negotiations at an industry level, and uses its influence for the good in dealings with government. It has developed a policy with regard to the very issues which arose at the Concept Blue site on 5 and 6 August 2003. With reference to stoppages in various parts of the industry in response to the death at Shepparton on 1 August 2003, in his affidavit Mr Kingham said that the union did not believe "that the conduct which took place necessarily amounts to industrial action". I infer from this statement that the union is conscious of the distinction between stoppages which are, and stoppages which are not, agreed to by the employer in question, and of the significance of that distinction under the definition of "industrial action" in the Act. There can be no doubt but that the union, and the third and fourth respondents, were well aware that the first respondent did not agree to the stoppages on the Concept Blue site on 5 and 6 August 2003. The inference is irresistible that those respondents engaged in the conduct complained of not only wilfully but well aware that it most probably involved contraventions of s 187AB of the Act. 163 In some cases of contraventions of par (b) of s 187AB(1) of the Act, it might be appropriate to take into account the damaging effect of the industrial action in question. There may be cases in which the industrial action ought to be regarded as more serious than the claims in support of which it was taken. This is, however, not such a case. There was no evidence as to the effect of the industrial action upon the first respondent or anyone else, in which circumstances I am inclined to regard each of the three bans constituting industrial action, and the single claim for payment of the employees on the Concept Blue site, as inherently of about equivalent seriousness. 164 Deterrence is always a significant consideration when it comes to imposing penalties for the contravention of a statutory norm. In the present case, I am disposed to accept his Honour's assessment of the matter of individual deterrence. He noted that, as a result of proceedings for contravention, the union had altered its policy, such that, in future, productive work would not be interrupted while safety audits were conducted. I agree with his Honour that this was an appropriate response by the union, and that the union should be given credit for its recognition of the norms of conduct established by s 187AB. However, his Honour did not refer to the important matter of general deterrence. The history of the union policy as outlined in Mr Kingham's affidavit demonstrates, in my view, that the union has something of a leadership position in the industry on questions of the kind to which these proceedings relate. I consider that some recognition of the need for general deterrence would be salutary in the circumstances, and should be included in the mix of considerations taken into account in the determination of an appropriate penalty. 165 A mitigating circumstance in the present case is that none of these respondents has previously been found to have contravened s 187AB of the Act (although the union, as his Honour noted, has previously contravened other provisions of the Act). 166 Taking into account the matters to which I have referred above, I consider that an appropriate penalty to be imposed upon the union for each of the four contraventions, considered as an individual entity, would be $3,500. The circumstances of the case do, however, call for the application of the totality principle, in the way I have described earlier in these reasons. The court is required to arrive at an overall penalty which would be appropriate in the circumstances, reflecting the facts both that there were multiple contraventions in the facts of the case and that those contraventions were closely related in point of timing, purpose and otherwise. In all the circumstances, I consider that a penalty of $5,000 should be imposed on the union. 167 Neither before his Honour nor on appeal did the appellant submit that a penalty should be imposed on the third respondent or on the fourth respondent. The appellant sought a declaration that each had contravened s 187AB of the Act by his conduct at the Port Melbourne site. I would otherwise have been disposed to impose a modest penalty on these respondents, but I think it would be wrong to do so in the light of the position taken by the appellant. 168 I would allow the appeal and order that a penalty of $5,000.00 be imposed upon the union. To reflect the conclusions I have reached as to the conduct of the union and of the third and fourth respondents, I would make a declaration of the respects in which each of them has contravened s 187AB by making the claim, and by organising each of the three instances of industrial action, to which I have referred in these reasons.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.
Counsel for the Appellant: R Maidment SC with P O'Grady
Solicitor for the Appellant: Australian Government Solicitor
Counsel for the First Respondent: R Levin
Solicitor for the First Respondent: Price Waterhouse Coopers Legal
Counsel for the Second, Third and Fourth Respondents C Dowling
Solicitor for the Second, Third and Fourth Respondents Construction Forestry Mining and Energy Union
Date of Hearing: 21 February 2007
Date of Judgment: 14 May 2007
Ponzio
B & P Caelli Constructions Pty Ltd
REASONS FOR JUDGMENT MARSHALL J 1 Safety in the workplace is a matter of paramount importance, especially in the construction industry. In 1999, 15 construction workers died while working. At this time, the second respondent, the Construction, Forestry, Mining and Energy Union ('Union'), implemented a policy requiring an industry wide 24 hour stoppage of work when a death occurred in the industry. The Union implemented the policy, in part, in an attempt to have more workplace safety inspectors engaged by the Victorian Government. Since that time, the number of deaths of construction workers has decreased. In 2002, the Union and major employers in the industry agreed that the policy should be changed so that when a death occurred in the industry, instead of an industry wide 24 hour stoppage, work would stop while a safety audit and any rectification work required was undertaken on each construction site ('2002 policy'). According to Martin Kingham, the State Secretary of the Union, under the 2002 policy, workers were to be paid while the safety audit and any rectification works were undertaken. 2 The problem with adhering to the 2002 policy is the risk of breaching ss 187AA and 187AB of the pre-reform Workplace Relations Act 1996 (Cth) ('Act'). These sections prohibit: · an employer making a payment to an employee in relation to a period during which the employee engages in industrial action (s 187AA); · an organisation, or an officer or an employee of an organisation: o making a claim for an employer to make payment to an employee in relation to a period during which the employee engages in industrial action (187AB(1)(a)); or o organising or engaging in, or threatening to organise or engage in, industrial action against an employer with intent to coerce the employer to make such a payment (187AB(1)(b)). 3 The facts and circumstances giving rise to the proceeding before the primary judge illustrate the inherent conflict between adhering to the 2002 policy and complying with ss 187A and 187AB of the Act. Those facts and circumstances are set out in the reasons for judgment of the other members of the Court. 4 The question for determination in this appeal is whether the primary judge's discretion miscarried. His Honour dismissed the application. Given Caelli admitted to breaching s 187AA and the Union admitted to breaching s 187AB, at the very least, a declaration recording those breaches should have been made. Consequently, I consider that the primary judge's discretion miscarried. I now consider the appropriate penalty, exercising that discretion afresh. 5 The appellant and Caelli agreed that a penalty of $6000, suspended for 12 months, should be imposed on Caelli. Counsel for Caelli said his client agreed to this penalty as a commercial decision. I consider a penalty of $6000 out of the permissible range in this matter. The highest penalty previously imposed for a breach of s 187AA is $4000 (see Pine v Multiplex Constructions (Vic) Pty Ltd [2005] FCA 1428 ('Multiplex')). 6 Several factors distinguish the present case from Multiplex [2005] FCA 1428. First, Multiplex had a practice of making payments in accordance with the 2002 policy. Multiplex was one of the major employers involved in the discussions leading to the Union adopting the 2002 policy. Multiplex therefore led the Union to believe that workers would be paid, if requested, for periods when safety audits and rectification work took place. Here, Caelli resisted making any payments until it bowed to pressure to do so and in circumstances where all other relevant employers had made such payments. 7 Second, Multiplex was the head contractor, not a sub-contractor, like Caelli. Unlike Caelli, Multiplex had ready access to legal and industrial relations advice, through inhouse lawyers and industrial relations managers. Having regard to the penalty imposed on Multiplex, a penalty of $6000 for the employer in this case is too high. 8 In any event, it may legitimately be asked: what is the utility in imposing a penalty on Caelli? The 2002 policy has been amended to comply with the Act. The facts and circumstances of this case are unlikely to recur. Although the contravention was conscious, rather than inadvertent, it occurred under oppressive circumstances. I do not consider that anything would be achieved by imposing a penalty on Caelli. Accordingly, I would record by way of declaration that Caelli breached s 187AA of the Act by making payments to its employees for work performed in relation to a period during which they engaged in industrial action. 9 The Union's breach of s 187AB requires a penalty to be imposed because it involved the Union's representatives pressuring Caelli. In those circumstances, I consider a financial penalty is appropriate. In Furlong v Maxim Electrical Services (Vic) Pty Ltd (No 3) [2006] FCA 1705, I imposed a penalty of $1750 on a union in respect of a breach of s 187AB. That case concerned one of the sites the subject of this proceeding. The only material difference between that matter and the current matter is that the Union here applied pressure to obtain the payments. Consequently, a penalty in excess of $1750 is appropriate. I would impose a penalty of $2500 on the Union. 10 No penalty was sought against the third and fourth respondents. That was appropriate in the circumstances. A declaration of the breach of the Act by each of the third and fourth respondents should be recorded. 11 The orders which reflect these reasons are:
REASONS FOR JUDGMENT LANDER J: 12 This is an appeal from an order of a judge of this Court dismissing an application which sought declarations that the respondents had breached provisions of the Workplace Relations Act 1996 (Cth) ('the Act') and seeking the imposition of penalties under s 187AD of the Act. 13 The appellant is an inspector duly appointed under s 84 of the Act and thereby entitled to bring a proceeding seeking orders under s 187AD of the Act, pursuant to s 187AC(2) of the Act and the regulations made under the Act. 14 The first respondent ('Caelli') was, at the relevant time, an employer for the purposes of s 187AA of the Act. It was also a constitutional corporation for the purposes of s 4(1) of the Act and was a party to and bound by a certified agreement (being the Caelli Constructions (Vic) Pty Ltd and CFMEU Building and Construction Industry Collective Bargaining Agreement 2002-2005 ('the Certified Agreement')) and an award (being the National Building and Construction Industry Award 2000 ('the Award')). The second respondent ('the Union') is an organisation of employees registered under the Act. It also was a party to and bound by the Certified Agreement and by the Award. The third respondent was, at the relevant time, a member of the Union and a shop steward or job delegate recognised as an accredited representative of the Union, pursuant to the Union rules. The fourth respondent was employed by the Union as an organiser. The third and fourth respondents were bound by the Certified Agreement. 15 The application which was before the primary judge sought a declaration that Caelli had contravened s 187AA(1) of the Act and further sought a penalty against it under s 187AD of the Act. The application sought a declaration that the Union and the third and fourth respondents had contravened s 187AB of the Act and sought penalties against each of them. 16 In his Statement of Claim the appellant claims to be entitled to those declarations and penalties in respect of work which was being carried out by Caelli pursuant to an engagement with Multiplex Ltd ('Multiplex') at the Concept Blue Apartments project at 336 Russell Street, Melbourne ('the Concept Blue Site'). 17 The facts which follow are taken from a Statement of Agreed Facts between the appellant and Caelli, and a further Statement of Agreed Facts between the appellant and the Union and the third and fourth respondents. The primary judge found that the separately agreed facts were not inconsistent and I agree. The Statement of Agreed Facts refers to other sites apart from the Concept Blue Site and other industrial action at those sites. No declarations or penalties were sought in respect of those other sites. The agreed facts were put forward to show that there had been other contraventions at those other sites by Caelli. 18 On Friday, 1 August 2003 a Union member died whilst performing his work at Shepparton in the State of Victoria. There was no connection between the work which he was performing and the work being performed by Caelli at the Concept Blue Site other than that the work could be said to be 'building and construction work'. 19 As at 1 August 2003 the Union had a policy, which it had adopted on 25 June 2002, in relation to on-site fatalities. The policy was in writing. The policy stated: 'When the Victorian Construction Unions (VTHC BIG) have a confirmed death of a unionised construction worker arising out of an industrial accident on site, the following steps will be taken: (i) The immediate needs of the affected family will be the first priority. (ii) The site where the death occurs will immediately stop work and other sites of the same principal contractor will also stop. (iii) Mass meeting on site will be called in the industry and following day (sic.) to hear a report on the incident. Then the following will occur: (a) All productive work will stop and a full, thorough safety audit will be conducted by all available safety committee members from the basement to the roof and any OHS problems immediately rectified. Clean up works arising from the audit will be undertaken (as per VBIA) with areas progressively opened to production once listed items have been addressed. (b) In addition the site meetings will take up an agreed minimum amount per worker to be collected by the relevant Shop Stewards. This will be donated immediately to the deceased worker's family via the appropriate union office where a receipt will be issued and shall be displayed on site noticeboards. (c) Any other actions required can be voted on at the site mass meeting. (iv) Industry-wide stopwork action may occur with the mutual agreement of BIG Secretaries, taking into account the nature and circumstances of the incident leading to the death of the worker.' 20 The policy was known to Caelli. 21 There was no interruption to work at the Concept Blue Site on 1 August 2003 and on the following day, Saturday, 2 August 2003. No work was carried out on Sunday, 3 August 2003 or on Monday, 4 August 2003, which was a rostered day off. 22 On 5 and 6 August 2003 each of the employees of Caelli was required, pursuant to the Certified Agreement which controlled the relationship between Caelli and its employees, to work an 8-hour day commencing at 7.00am. 23 At approximately 8.30am on 5 August 2003 Caelli's employees ceased work on the Concept Blue Site whilst a site safety audit was conducted in accordance with the Union's onsite fatalities policy. The site audit completed at 1.00pm. No work was undertaken by Caelli's employees on the Concept Blue Site (except by the site foreman) from 8.30am until the end of the scheduled day at 3.30pm. During that period, the employees remained on site but sat in the sheds and failed or refused to perform any work. 24 On 6 August 2003 the employees attended work at 7.00am and sat in the sheds. At approximately 7.30am the employees attended a mass meeting of workers at the Concept Blue Site which was conducted by Union representatives. They did not return to work until 10.00am. 25 Caelli initially refused to pay the employees for 5 August 2003 or for the further period between 7.00am and 10.00am on 6 August 2003. 26 As at 5 and 6 August 2003, Caelli had a procedure in place to prevent payments being made to its employees in respect to any period of industrial action. The procedure was: '77. The Respondent has a procedure in place to prevent payments being made to its employees with respect to periods of industrial action which is as follows: 77.1 the Respondent's site foreman will prepare an Industrial Report when any industrial stoppages take place on site, and this Report indicates the nature of the industrial action; 77.2 the Respondent's site foreman completed daily time sheets for each of the employees on site which records the period of time worked. These time sheets are forwarded on to the Respondent's pay officer; 77.3 when completing the timesheets the Respondent's site foreman will investigate whether any period of lost time refers to a work stoppage for Occupational Health and Safety reasons; and 77.4 if periods of lost time relate to anything other than occupational health and safety reasons, the Respondent's site foreman will finalise the time sheets to indicate that no payment is to be made for the period of the work stoppage.' 27 On 25 August 2003 Caelli was engaged in work at the I.D. Apartments Site at Port Melbourne. At 12.30pm on that day the third respondent told a Mr Mitchell, an employee of Caelli, that the Union had placed bans on the use of forklifts on the I.D. Apartments Site. Those bans were lifted at about 2.00pm on the same day when the Union imposed new bans on access to balconies where Caelli handrails existed. 28 At about 7.00am on the next day, the third respondent notified Mr Mitchell that the Union had imposed bans against the use of forklifts on the I.D. Apartments Site. 29 At about 10.15am on the same day, Mr Watson, another employee of Caelli and Mr Mitchell, met with the third and fourth respondents. During that meeting, the third and fourth respondents threatened that action would be taken because Caelli had not paid employees for the time which they had not worked on 5 and 6 August 2003. 30 The fourth respondent said that the third and fourth respondents would bring in WorkCover to go over the site. Mr Watson advised the third and fourth respondents that the site safety committee had never identified any of the issues raised as safety problems. The third respondent said 'as Caelli Constructions were not going to pay its employees for the lost time issue he was going to try to find any reason to bring WorkCover out to the site'. 31 A dispute arose between the third and fourth respondents and Caelli about whether Caelli would pay the employees for the time which they had lost on 5 and 6 August 2003. 32 The fourth respondent asked Mr Watson to identify his position with Caelli. Mr Watson said that he was the occupational health and safety manager and site administrator. The third respondent told Mr Mitchell to get Mr Caelli to attend the I.D. Apartments Site to discuss the non-payment issue or 'he would ring WorkCover and have them come out to the site'. 33 Later that day, there was a meeting at which Mr Caelli, Mr Watson and Mr Mitchell were present together with Mr Jim Moss, who was the director of a contractor on the site, and the third and fourth respondents. 34 At that meeting, the third and fourth respondents told Mr Caelli that unless Caelli paid its employees for the time which they did not work on 5 and 6 August 2003 further industrial action would follow. They told Mr Caelli that Caelli was the only employer within the industry which had not paid its employees for the stoppage on 5 and 6 August 2003, and that the Union was not going to let it go. 35 Mr Caelli told the third and fourth respondents that he had decided that Caelli would pay its employees for the time which they engaged in industrial action on those days but only because of the persistent threats of ongoing industrial action made by officials and members of the Union. 36 The third and fourth respondents then agreed to lift the balconies bans and the forklift bans that had been imposed at the I.D. Apartments Site. Mr Watson was told at 12.00 noon on 26 August 2003 that the forklift bans had been lifted. 37 The number of Concept Blue Site employees who did not work on 5 August 2003 was 54, 50 of whom were paid a total sum of $7,601.23 for the period of industrial action. The number of Concept Blue Site employees who did not work between the hours mentioned on 6 August 2003 was 51. Caelli paid those 51 employees a total sum of $3,187.80 for the period of industrial action. 38 Section 187AA provides: '(1) An employer must not make a payment to an employee in relation to a period during which the employee engaged, or engages, in industrial action if: (a) the employer or employee was or is a member of an organisation during that period; or (b) the employer was or is a constitutional corporation bound by an award, a certified agreement or an AWA during that period; or (c) the industrial action was taken, or is being taken, in connection with work regulated by an award, a certified agreement or an AWA; or (d) the industrial action was taken, or is being taken, in relation to an industrial dispute; or (e) the industrial action was or is of a kind referred to in paragraph (a), (b) or (c) of the definition of industrial action in subsection 4(1); or (f) the industrial action was taken, or is being taken, in a Territory. Note: For constitutional corporation, see subsection 4(1). (2) An employee must not accept a payment from an employer if the employer would contravene subsection (1) by making the payment. (3) A contravention of subsection (1) or (2) is not an offence.' 39 Caelli admitted, for the purpose of the proceedings, that it had contravened s 187AA of the Act. It admitted that it had made payments to employees who were employed at the Concept Blue Site in relation to the stoppages on 5 and 6 August 2003 in respect of the period of industrial action. 40 It admitted that it had paid the sum of $30,954.86 (not including allowances) to a total of approximately 350 Caelli employees in relation to periods of industrial action on the Concept Blue Site and other sites at which the company was engaged. 41 Caelli admitted all of the elements of s 187AA(1) and a contravention of that section. 42 Caelli agreed: '1. Subject to order 2, a penalty of $6,000 be imposed on [Caelli] in respect of the contraventions of section 187AA of the Workplace Relations Act 1996 (Cth), such penalty to be paid into the Consolidated Revenue Fund on or before (date). 2. Notwithstanding order 1, (Caelli) is not obliged to pay the said penalty if between the day of this order and (date, 12 months later), it has not been adjudged to have breached any provision of the Workplace Relations Act 1996 (Cth).' 43 Section 187AB(1) provides: '(1) An organisation, or an officer, member or employee of an organisation, must not: (a) make a claim for an employer to make a payment to an employee in relation to a period during which the employee engaged, or engages, in industrial action; or (b) organise or engage in, or threaten to organise or engage in, industrial action against an employer with intent to coerce the employer to make such a payment.' 44 The Union and the third and fourth respondents admitted a contravention of s 187AB(1)(a), but not a contravention of s 187AB(1)(b). No penalty was agreed by the Union and the third and fourth respondents in respect of the contravention of s 187AB(1)(a). 45 The primary judge found that the Union and the third and fourth respondents had contravened s 187AB(1)(b). He inferred from the circumstances in which the bans were imposed and the discussions accompanying those events, that the Union and the third and fourth respondents 'intended to press the first respondent into making payments'. 46 I think it may be taken from that finding that his Honour was satisfied that the Union and the third and fourth respondents had engaged in, or threatened to engage in, industrial action against Caelli with intent to coerce Caelli to make the payments which were made. Certainly, the appeal proceeded upon the basis that the primary judge had found that the appellant had established a contravention of s 187AB(1)(b). The Union and the third and fourth respondents did not contend on the appeal that that finding should not have been made. 47 Section 187AD(1)(a) provides: '(1) In respect of contraventions of section 187AA or 187AB, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders: (a) an order imposing on a person who contravened or is contravening that section a penalty of not more than $10,000.' 48 The remaining paragraphs of s 187AD(1) are not relevant. Nor is s 187AD(2). 49 Notwithstanding the appellant and Caelli had agreed upon the penalty to be imposed upon Caelli, the primary judge dismissed the application against Caelli without penalty. He also dismissed the application against the Union and the third and fourth respondents without penalty. 50 There is no complaint about not imposing a penalty on the third and fourth respondents because it was conceded at the hearing before the primary judge that if a penalty were to be imposed in respect of the Union and the third and fourth respondents' contraventions of s 187AB(1)(a) and s 187(1)(b), the penalty should be imposed on the Union. The appellant limited himself to seeking declarations in respect of the third and fourth respondents' contraventions. 51 There was other evidence before the primary judge apart from the agreed facts. The appellant read an affidavit of Ms Lisette Pine, who was originally the applicant in these proceedings and an inspector appointed under s 84 of the Act. She was a member of the Building Industry Taskforce. She deposed to the circumstances in which the Taskforce was established as a consequence of the first report of the Royal Commission into the building and construction industry published on 5 August 2002. Commissioner Cole found that there was a 'culture of widespread unlawful activity including threatening and violent behaviour, illegal industrial action and paying, claiming and receiving strike pay'. In his second report, published on 24 February 2003, Commissioner Cole identified 'widespread disrespect for, disregard of and breach of the law in the building and construction industry'. 52 She deposed to the role of the Taskforce and said: '6. After 35 months of operation, the Taskforce shares the same conclusions reached by Commissioner Cole in the Final Report. In its report "Upholding the Law - One Year on: Findings of the Interim Building Industry Taskforce" dated 25 March 2004, the Taskforce said that it had found considerable evidence of widespread disregard for the provisions of the WR Act such as the contravention of freedom of association provisions, widespread making of, and receipt of, inappropriate payments and unlawful strikes and threats of unlawful strikes. The Taskforce is committed to taking legal proceedings, fearlessly and without favour or partiality, against those in the industry who contravene the law, irrespective of whether they are employers, employees or unions. 7. The level of industrial disputation in the building and construction industry is substantial. According to the Australian Bureau of Statistics, Australian Labour Market Statistics, Cat No. 6105.0 dated January 2005, in 2003-04 the construction industry employed 8% of the Australian workforce. According to the Australian Bureau of Statistics, Industrial Disputes, Cat No. 6321.0.55.001, for the same period, these workers accounted for over 21% of working days lost.' 53 She also deposed that the Taskforce had commenced 18 proceedings against multiple respondents, including Multiplex, the Union and other industrial organisations, subcontractors, shop stewards, delegates, and union organisers arising out of the events which occurred on building sites in Melbourne on 5 and 6 August 2003 in relation to the worker's death at Shepparton. Her evidence was not challenged. 54 The Union and the third and fourth respondents read an affidavit of Martin Kingham, the State Secretary of the Union, who deposed to the circumstances in which the policy to which I have referred came about. During 1999, 15 construction workers died whilst employed in the industry. He said that was an issue of major concern for the Union and the Union decided that on each occasion that a death occurred in the industry there would be a 24 hour stoppage of work across the industry. Payment was not sought for those stoppages. The reason for the practice was first to show respect for the deceased and, secondly, to try and highlight the issue to the Victorian State Government. Mr Kingham said that the policy which obtained after 1999 was successful in that more Worksafe inspectors were appointed and there was a decrease in the number of deaths in the industry. 55 He said that employers argued that the practice of a 24 hour stoppage punished employers who were not involved in the site upon which the worker had died. As a result, the Union agreed to amend its policy and a new practice was agreed upon. Mr Kingham described that practice: '12. As a consequence of those discussions a new practice was agreed to. The new practice would be that a site safety audit would be conducted while the members did not perform any productive work. During the conduct of the site safety audit any necessary safety rectification work would be undertaken. When areas of a site were deemed to safe them (sic) normal productive work would recommence. Also there would be a report back meeting to the members engaged on each project to inform them of the nature of the death and what assistance that the union would be taking or seeking on behalf of the deceased member. For instance, if there is a young family who is involved then usually there would be a levy or donations of the workers on the site to help out the family of the deceased worker.' That was the policy which was in place as at 1 August 2003. 56 He then deposed to the particular death on 1 August 2003 and the prosecutions arising out of stoppages on the Concept Blue Site on 5 and 6 August 2003. He said that, as a result, the policy had been amended such that, in future, where a death in the industry occurred the site safety audit would take place whilst normal productive work continued. He said that the practice of informing workers about the circumstances giving rise to the worker's death and the practice of seeking donations and levies would continue. He concluded that as a result of the change in policy 'there should not be any future prosecutions arising out of any future death in the industry'. Mr Kingham's evidence was not challenged. 57 The primary judge first addressed the case against Caelli. His Honour said that, notwithstanding the agreement between the appellant and Caelli about the penalty to be imposed, the Court had a responsibility for determining itself whether the penalty was appropriate and in that regard he followed the decision of this Court in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 at [51] where the Court said: '(vi) Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The question is whether that figure is, in the Court's view, appropriate in the circumstances of the case. In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if within the permissible range.' 58 The appellant accepted the correctness of his Honour's approach in this regard both before the primary judge and on appeal. 59 In considering the appropriate penalty, his Honour said that the general background outlined by Ms Pine 'does not assist much in this task because the affidavit does not address the specific issue of responses to fatalities in the building industry'. He said at [22] of his reasons: '22 The concern of workers in the industry in ensuring safe workplaces can be readily understood. It is easy to accept that a fatality on a site in the industry, even if not on the site on which a particular worker is engaged, raises immediate feelings of insecurity and threat. No doubt these responses explain the establishment of the union policy which required that mass meetings be called on all sites in the industry in Victoria to explain any such incident, and a stoppage of work for the period necessary to undertake a safety audit on sites. It is reasonable to expect that employers would fund the taking of steps necessary to assure their workforces of the safety of the workplaces in view of the shock engendered by the death of a fellow worker in the industry. However, the strict terms of s 187AA do not permit employers to pay workers for the period during which the safety audit is conducted if work is stopped. It may be that such a harsh result was not contemplated by Parliament when the section was enacted. It is probable that Parliament had in mind that the law would stop payments made for stoppages which were designed to put undue pressure on employers in support of industrial claims for increased pay or improved conditions. In those circumstances, it generally would not be reasonable to expect employers to fund the industrial action taken against them. Even though the text of the section covers the present circumstances where payments were made in respect of stoppages undertaken to ensure safety on building sites in response to a fatality in the industry, the making of payments in those circumstances is at the lower end of the spectrum of seriousness of the conduct intended to be addressed by s 187AA.' 60 He also said that the Court had to be careful in fixing the penalties so as not to bring the law into disrepute. He said: 'If penalties are imposed on employers who pay workers for stoppages which reasonable people would see as understandable and justified in all the circumstances, the law itself will be seen to be out of stop with reasonable community expectations.' 61 He then discussed a number of cases where, in some, no penalty had been imposed, and in others penalties were imposed. 62 He had noted earlier in his reasons that there were six factors put by way of mitigation: (1) Caelli did not resist the application and cooperated from an early stage; (2) Caelli has not previously contravened Part VIIIA of the Act; (3) Caelli has reviewed its strike pay procedure; (4) although the payments were made knowingly in contravention of the Act, they were made under significant pressure from the other respondents; (5) since August 2003, Caelli has resisted making payments in contravention of s 187AA of the Act in relation to a number of other instances of industrial action; and (6) the conduct of the legal proceedings had been expensive. 63 He later elaborated on some of those matters. He found that it was unlikely that Caelli would contravene again. He said that the circumstances of the contravention were 'at the lower end of seriousness'. He said '... [Caelli] has been punished by the costs, time and trouble involved with defending the proceeding'. 64 He therefore concluded that a penalty of $6,000 was outside the permissible range even though the penalty would not be payable if there were no further contraventions in the 12 months after the penalty was imposed. He said that he would have to proceed on the basis that Caelli would be called upon to pay the penalty. 65 He concluded: '33 There are several factors which militate in favour of imposing a pecuniary penalty in this case. The scale of contravention is high in that a large number of payments were made. The payments were made deliberately. Further, it is important that the law be obeyed. 34 On the other hand, all the payments were made in respect of stoppages on two days. Further, they were made in response to significant pressure from the second, third and fourth respondents. The payments were made for stoppages arising from a death in the industry. As explained earlier in these reasons, such circumstances place the contravention at the lower end of seriousness. In addition, the first respondent has not contravened s 187AA before. It has been cooperative and not resisted the application. Importantly, it has suffered a degree of punishment from the cost, time and trouble involved in defending the proceedings. In my view, this constitutes a reasonable punishment for the contraventions. It is also likely to be sufficient to deter the first respondent from further contraventions. That assessment is supported by the fact that the first respondent has resisted further contraventions since August 2003. 35 The question of general deterrence is a little harder to resolve. It would be an undesirable outcome of this proceeding if others in the building and construction industry concluded from this case that no real consequences flow from a breach of s 187AA. However, the fact that proceedings were taken against the first respondent for contravention with the attendant expense, time and trouble will be a deterrent to others in the industry. In my view, this level of deterrence is proportionate to the seriousness of the contraventions. Indeed, as earlier explained, there is a danger that a greater penalty may generate disdain for the law. This would be counter-productive. Instead of the enforcement proceeding generating a greater respect for the law, the opposite result might be produced. In all the circumstances, the Court should dismiss the application against the first respondent without penalty.' 66 He then turned his attention to the Union and the third and fourth respondents. As I have already noted, he found a contravention in respect to s 187AB(1)(b). He noted that the appellant proposed a global penalty of $30,000. 67 He recorded the appellant's argument that the conduct of the Union and the third and fourth respondents was serious because they deliberately applied pressure to force Caelli to make payments which it had properly, to that point, refused to do. He said, however, that there were a number of matters which favoured mitigation. First, although the Union had committed contraventions of other sections of the Act it had not committed any prior contraventions of s 187AB. The third and fourth respondents had not committed any prior contraventions of the Act. Secondly, the stoppages occurred in response to a fatality in the building and construction industry which 'differentiates the stoppages from those taken in support of better wages or conditions, and thereby render the payments less culpable than payments for stoppages arising out of material self interest alone'. Thirdly, he referred to Mr Kingham's affidavit at length and noted that, in consequence of the threat of prosecution, the Union had amended its policy so that in future safety audits would take place while normal productive work continued. 68 He concluded: '49 Having regard to all these factors, and in particular to the circumstances of the contravention, including the history of the union policy, the absence of prior contraventions of s 187AB and the probability that the union will not commit contraventions of s 187AB in the future, there should be no penalty imposed on the second respondent. 50 For the same reasons, together with the additional facts that the third and fourth respondents were acting as shop steward and organiser respectively of the second respondent as its servants or agents to give effect to the policy concerning fatalities on building sites, no penalty should be imposed on the third or fourth respondent. 51 As the contraventions of s 187AB (1)(a) were admitted, and these reasons contain findings of contraventions of s 187AB(1)(b), there is no purpose in making declarations that the second, third and fourth respondents have contravened that section. The application against them should also be dismissed.' 69 The appellant articulated the issues on the appeal: '1. The issues in this appeal are as follows: (a) whether the learned trial Judge erred in law by acting upon wrong principle in the exercise of his discretion to refuse to grant the relief sought in the Application as against the First Respondent in that: (i) his Honour concluded that the penalty agreed between the Appellant and the First Respondent was outside the permissible range; and (ii) in exercising his discretion afresh: a. his Honour took into account extraneous or irrelevant matters to guide or affect the exercise of the discretion; and b. his Honour failed to take into account material considerations; and (a)(sic)whether the learned trial Judge erred in law by acting upon wrong principle in the exercise of his discretion to refuse the grant of relief sought in the Application as against the Second to Fourth Respondents in that: (i) his Honour took into account extraneous or irrelevant matters to guide or affect the exercise of the discretion; and (ii) his Honour failed to take into account material considerations.' 70 The appellant accepted that he had the burden of persuading this Court that the discretion in relation to the imposition of a penalty which rested in the primary judge had miscarried. It was accepted that he would have to persuade this Court that the primary judge either acted under a wrong principle or failed to have regard to a relevant matter or had regard to an irrelevant matter or misunderstood the facts such that the exercise of discretion should be reviewed: House v The King (1936) 55 CLR 499 at 504-505. 71 The appellant contended that there were two relevant periods of industrial action; first, between 8.30am and 1.00pm on 5 August 2003 when the safety audit was conducted; and secondly, between 1.00pm and 3.30pm on 5 August 2003 and between 7.00am and 10.00am on 6 August 2003. I will refer to a third period of industrial action later. 72 The appellant accepted that the first period of industrial action was relevant to the Union's policy in respect to a death on a construction site and, in those circumstances, the respondent's actions, collectively, were less culpable in respect of that period. 73 I think, with respect, that a better approach is to determine the construction of the respective sections which provide for the contraventions and first determine what period it is that the two sections address. The section does not address industrial action day by day. If there is a continuous period during which employees engage in industrial action then, in my opinion, the sections address that period. In my opinion, for the purposes of those sections, the period of industrial action commenced at 8.30am on 5 August and completed at 10.00am on 6 August 2003. It is artificial to attempt to compartmentalise the periods in the way contended for by the appellant and, indeed, by the Union and the third and fourth respondents. 74 For those reasons, I think the period of industrial action for the purposes of s 187AA and s 187AB, on the facts of this case, was between 8.30am on 5 August 2003 and 10.00am on 6 August 2003. 75 Next, it is necessary to determine whether s 187AA and s 187AB provide for separate contraventions for each payment to each employee or whether there is but one contravention for the payment made to the employees. In other words, should the word 'employee' in s 187AA be construed to include the plural 'employees' by reference to the Acts Interpretation Act 1901 (Cth). So also should 'employee' in s 187AB(1)(a) be construed as including the plural, as should 'payment' in s 187AB(1)(b) be construed as including the plural. 76 Clearly enough, the word 'employee' in s 187AA(2) does not include the plural. Section 187AA(2) applies to every employee of an employer who accepts a payment which would cause the employer to contravene subsection (1) by making the payment. I think consistency demands that 'employee' in s 187AA(1) does not include the plural and therefore that each payment to each employee of the employer during which the employee engaged in industrial action gives rise to a separate contravention of that section. 77 I think the same must be the case in relation to 'employee' in s 187AB(1)(a). It is entirely possible that that subsection could be breached in relation to some employees who engaged in industrial action and not all employees. I think, consistently with s 187AA, 'employee' there does not include the plural. 78 Therefore, an organisation, officer, member or employee of an organisation contravenes s 187AB(1)(a) in relation to each claim made in relation to each employee who has engaged in industrial action. It would follow, therefore, that the payment referred to in s 187AB(1)(b) is the payment to each employee and that there is a contravention of s 187AB(1)(b) where an organisation, officer, member or employee of an organisation has engaged in industrial action against an employer with intent to cause the employer to make a payment to each employee. 79 Such a construction is consistent with the construction given a similar section (s 298K(1)(c)) by the Full Court in BHP Iron Ore Pty Ltd v Australian Workers' Union and Others (2000) 97 IR 266 and by Nicholson J in Maritime Union of Australia and Others v Geraldton Port Authority and Others (No 2) (2000) 94 IR 404 at 413 and (s 298M and s 298R) by Marshall J in Automotive Food Engineering Printing and Kindred Industries Union v DMG Industries Pty Ltd (2000) 102 IR 175. That means, of course, that Caelli has contravened s 187AA(1) on 101 occasions and the Union and the third and fourth respondents have contravened each of s 187AB(1)(a) and s 187(1)(b) on 101 occasions. 80 That is not to say, however, that it would be appropriate in determining whether a penalty should be imposed and the amount of that penalty to simply have regard to the number of contraventions. In the case of Caelli, whilst there were 101 contraventions they occurred in relation to the one act. In the case of the Union and the third and fourth respondents, although there were 202 contraventions they occurred in relation to two acts. In their case, the first act was making the claim: s 187AB(1)(a) of the Act; the second act was to engage in industrial action with intent to coerce the employer to make such a payment: s 187AB(1)(b) of the Act. 81 There was, of course, a further period of industrial action on 25 August 2003 by the Union and the third and fourth respondents but that industrial action is only relevant to the circumstances surrounding the contravention in relation to s 187AB(1)(b). 82 The appellant contended that the primary judge failed to give effect to the policy of the Act and gave the Act a policy which was never intended. 83 The policy of the Act is to discourage industrial action as it is defined in s 4 of the Act. The purpose of Part VIIIA of the Act, in which these provisions are contained, is to prevent an employer making a payment to the employer's employee in relation to any period during which the employee engages in industrial action. It is the intention of the Act to discourage employers and employees agreeing to the employer paying employees for that period of industrial action engaged in by the employee. To that end, s 187AA makes it a contravention for an employer to make a payment to an employee who has in relation to a period during which the employee engaged or engages in industrial action and at the same time makes it a contravention for the employee to accept a payment from an employer if by doing so the employer will contravene subsection (1) by making that payment. The policy of the Act is that if an employee engages in industrial action then it must be at the employee's own expense. The purpose of s 187AB is to discourage unions and their officers from making claims for a payment or engaging in or threatening to engage in or organising industrial action for the purpose of coercing the employer to make a payment to an employee during a period of industrial action. That section has as its added purpose a protection to the employer in the event that a union or its members engage in that further industrial action. 84 Industrial action is discouraged by putting the cost of that industrial action upon the employee rather than the employer. No doubt it is thought that an employee will be less likely to take industrial action if the employee knows that it is a contravention for both the employer and the employee if the employer makes a payment for the period of industrial action. 85 The appellant particularly complained of that part of the primary judge's reasons contained in [22] of his judgment, which is set out in [48] above. It was said that his Honour gave a benign construction to s 187AA by taking into account irrelevant matters of the kind to which his Honour referred in that paragraph. 86 In my opinion, his Honour's construction of s 187AA is, with respect, not correct. It may be accepted that as his Honour said that workers in this industry or, indeed, any other industry are concerned to ensure that their workplace is safe. However, it does not follow that the Union policy, which has now been abandoned for the reasons given by Mr Kingham, was thereby an appropriate policy to deal with workplace safety. An appropriate Union policy in relation to deaths on construction sites needed to incorporate a practice which was not prohibited by the Act. In particular, it needed to recognise the policy and purposes of the provisions in Part VIIIA of the Act. 87 Clearly, a policy which required employers from time to time, and perhaps in particular after a death on a construction site, to carry out a site safety audit could not be considered inappropriate. It does not follow, however, that the employees should not work whilst the audit is being carried out, particularly where the audit is being carried out on a site where the death did not occur. Indeed, that is now recognised by the Union which has changed the policy to that effect. Moreover, to limit a consideration to the period over which the safety site audit was carried out is to ignore, with respect, the industrial action which was in fact taken. The site safety audit completed at 1.00pm on 5 August 2003. On any understanding, there could be no reason why the employees did not leave the sheds at 1.00pm and attend for work on 6 August 2003. 88 His Honour said that the strict terms of s 187AA do not allow for employers to pay workers for the period during which the safety audit is conducted. Whilst that is right, that is to understate the effect of s 187AA. Section 187AA prohibits any payment to any employee who has engaged in any industrial action at all. Industrial action is defined in s 4 of the Act and by force of that definition industrial action does not include: '(g) action by an employee if: (i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and (ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.' It is clear that the Act recognises that an employee may need to stop work or take action which is not designated industrial action where the employee has a reasonable concern about an imminent risk to the employee's health or safety. 89 Section 187AA also provides that an employee must not accept a payment from an employer if the employer would contravene subsection (1) by making the payment. There is no reason to think that Parliament had in mind that s 187AA should not apply in its rigors to industrial action taken as a result of a death on a construction site where work could continue during the carrying out of a site safety audit. 90 In my opinion, the reason for the industrial action is irrelevant from the employer's point of view. An employer is no less culpable in respect of the contravention of s 187AA because the stoppage was as a result of a union policy which has been erected as a reaction to a death on a construction site. That was recognised by this employer. The employer understood that it was not permitted to make any payment to any employee in respect of any period of industrial action, whatever the reason for that industrial action. Mr Caelli authorised Caelli to make the payments, not because the Union policy was in his view appropriate or even understandable, but because Caelli was the subject of further industrial action, and it was threatened that there would be even more industrial action if it did not pay. 91 Insofar as the employer was concerned, therefore, in my opinion, the matters to which his Honour referred in [22] of his reasons are not relevant. 92 It follows, therefore, that the appellant has succeeded in establishing that the primary judge had regard to matters which were not relevant and failed to have regard to relevant matters such that the discretion which he enjoyed miscarried. In my opinion, it is for this Court then to consider whether the penalty which the appellant and Caelli agreed was appropriate in the circumstances of the case. 93 There are three purposes at least for imposing a penalty: punishment; deterrence; and rehabilitation. The punishment must be proportionate to the offence and in accordance with the prevailing standards of punishment: R v Hunter (1984) 36 SASR 101 at 103. Therefore the circumstances of the offence or contravention are especially important. The penalty must recognise the need for deterrence, both personal and general. In regard to personal deterrence, an assessment must be made of the risk of re-offending. In regard to general deterrence, it is assumed that an appropriate penalty will act as a deterrent to others who might be likely to offend: Yardley v Betts (1979) 22 SASR 108. The penalty therefore should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by like minded persons or organisations. If the penalty does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the section. However, the penalty should not be such as to crush the person upon whom the penalty is imposed or used to make that person a scapegoat. In some cases, general deterrence will be the paramount factor in fixing the penalty: R v Thompson (1975) 11 SASR 217. In some cases, although hardly in this type of contravention, rehabilitation is an important factor. 94 The individual or personal circumstances of the contravenor must be taken into account as also any relevant matter in mitigation. For a contravention of these sections the minimum penalty which addresses punishment and deterrence, both personal and general, will be appropriate. Where one act may involve a number of contraventions, as in this case, it would be generally inappropriate to impose separate penalties because almost inevitably that would offend against the totality principle as known to the criminal law. The better approach is to assess the culpability of the contravenor and have regard to the number of employees affected by that action. 95 The 101 contraventions by Caelli of s 187AA were deliberate and the payments made knowingly in contravention of s 187AA. Not only were the contraventions deliberate but they were made for a commercial purpose and to avoid any further industrial action on the part of the Union. Caelli, to that extent, succumbed to the industrial pressure which s 187AB is designed to prevent. 96 Contraventions by an employer of s 187AA must be difficult to detect because both the employer and employee commit a contravention if a payment is made and accepted. In those circumstances, it is unlikely that any party would bring the circumstances of the payment to the attention of the responsible authority. 97 Deterrence, both personal and general, need to be addressed. The primary judge's finding that it was unlikely that Caelli would contravene the section again is relevant to the question of personal deterrence. However, in my opinion, his Honour failed to have sufficient regard to aspects of general deterrence in that, by dismissing the application, he failed to impose a penalty which would deter others who might be likely to contravene the section. 98 The contraventions occurred 12 months after Commissioner Cole's first report and six months after his second report in which he identified 'widespread disrespect for, disregard of and breach of the law in the building and construction industry'. 99 There are the relevant matters, some of which are identified by the primary judge which need to be taken into account. First, Caelli has not previously contravened Part VIIIA of the Act; secondly, Caelli did not resist the application and cooperated from an early stage which is evidence of remorse and contrition; and, thirdly, Caelli has been put to some expense in connection with the proceeding. 100 The primary judge took into account that Caelli had reviewed its strike pay procedure. This was not, in my opinion, a relevant matter. The procedure which obtained at the time clearly recognised that payments of this kind ought not to be made. Thus, there was an appropriate procedure in place at the time. The primary judge also took into account that although the payments had been made knowingly in contravention of the Act, they were made under significant pressure from the other respondents. Whilst that is a relevant matter, of course, it is not a matter, in my opinion, which may be relied upon by Caelli (if, in fact, it was) to reduce the penalty. Section 187AB is designed to ensure that a payment is not made by the employer as a result of union or union members' pressure. In those circumstances, it is not a mitigating factor that the payments were made in response to union pressure. 101 His Honour also took into account that since August 2003 Caelli has resisted making payments in contravention of s 187AA of the Act in relation to a number of other instances of industrial action. That also, in my opinion, is not a matter which may be relied upon for reducing what would otherwise be the appropriate penalty. When boiled down, the proposition is no more than a statement that Caelli has complied with its obligations under the Act which, of course, by law, it had to do in any event. If it is a relevant factor, it points against a lower penalty because it suggests, notwithstanding the events of 5 and 6 August 2003, there is still a culture within the industry that the provisions of the Act may be disregarded. 102 The expense to which Caelli has been put might be a relevant matter but it is barely relevant when discussing the imposition of a penalty that will not, if Caelli observes the law for a period of 12 months, have to be paid. I do not accept that it is a relevant matter to have regard to 'the time and trouble involved with defending the proceeding'. Caelli has contravened the Act. It has not been put to trouble by this proceeding. If it has been put to any time or trouble it has been by its contraventions of the Act. 103 I do not accept, as his Honour found, that the circumstances of the contravention were at the lower end of seriousness. 104 His Honour also found, as I have said, that it was unlikely that Caelli would contravene again which is relevant to personal deterrence. That was a finding open to his Honour and, in my opinion, cannot be disturbed. However, if that be the correct finding, then the proposed penalty must be viewed in that light. If it is right to assume that Caelli will not contravene the Act in this regard in the future, then the penalty which the parties agreed upon will be unlikely ever to have to be paid. It is to be remembered that the penalty only becomes payable if Caelli has breached any provisions of the Act within 12 months of the imposition of the penalty. 105 The parties referred the Court to a number of other decisions of the Court including 13 previous prosecutions arising from the same death and on the same dates. They are helpful but they do not indicate that any tariff has been adopted for contraventions of this kind or contraventions under s 187AB(1). 106 The penalty, when viewed against penalties imposed by other judges of this Court in relation to the events of 5 and 6 August 2003, is at the higher end of the range. However, in my opinion, that is not to say that the penalty is inappropriate having regard to the circumstances of the payments. It was not argued by Caelli before the primary judge that no declaration should be made. It would be appropriate, having regard to the penalty to be imposed, to make a declaration that Caelli has contravened s 187AA of the Act. There ought to be a declaration that there has been a contravention by Caelli and a penalty ought to be imposed of the kind agreed by the parties. 107 In my opinion, the conduct of the Union and the third and fourth respondents was more culpable than that of the employer. Caelli attempted to comply with the Act. It complied with its own policy and did not pay its employees for the period of industrial action on 5 and 6 August 2003. 108 In due course, it succumbed to the coercive pressure which was imposed by the Union and the third and fourth respondents. 109 There can be no doubt that the Union and the third and fourth respondents were aware that what they were doing was a contravention of s 187AB(1)(a) and s 187AB(1)(b). They were aware that if Caelli paid its employees in response to that pressure Caelli would also be caused to contravene the Act. The Union should have been aware that, by causing Caelli to make the payments in contravention of s 187AA, any of their member employees who accepted the payment would also be contravening the Act: s 187AA(2). 110 In my opinion, the conduct of the Union and the third and fourth respondents indicated a calculated indifference to the provisions of the Act of the kind that Commissioner Cole spoke about in his report. 111 The conduct was such that a declaration should have been made and a penalty imposed. 112 Having regard to the penalty which the appellant and Caelli agreed, it would be appropriate to impose one penalty notwithstanding the Union and the third and fourth respondents contravened both s 187AB(1)(a) and s 187AB(1)(b), and in respect of 101 employees. 113 There is a need for a penalty which recognises both personal and general deterrence. The primary judge's finding that the Union would be unlikely to contravene the section again must stand for the purpose of assessing the personal deterrence aspect of the penalty. In respect of general deterrence, the Court should indicate that it views coercive behaviour of the kind indulged in by the Union and the third and fourth respondents as a serious contravention of the Act and the penalty should be constructed to deter any like organisations from engaging in the same or similar conduct. 114 The primary judge took into account that industrial action arose out of a fatality in the industry and that fatalities raise immediate feelings of insecurity and threat. The reason for the industrial action is relevant but only for the purpose of understanding the circumstances which gave rise to the actual contravention. The industrial action was not the contravention. The contraventions were the demand for payment and the coercive behaviour. 115 I would make the declarations sought against the Union and the third and fourth respondents. 116 I would impose a penalty in relation to each of the 101 contraventions relating to both paragraphs of s 187AB(1) but impose a total penalty of $5,000, being a penalty of $2,500 for the contravention of s 187AB(1)(a) and $2,500 for the contravention of s 187AB(1)(b). 117 The monetary sum is less than that imposed upon Caelli but the difference is, of course, that the penalty imposed upon Caelli will not have to be paid if Caelli does not contravene any provision of the Act in the next 12 months. In the case of the Union, the penalty must be paid. 118 I agree with the declarations and orders proposed by Jessup J.
(1936) 55 CLR 499
(2000) 97 IR 266
(2000) 94 IR 404
(2000) 102 IR 175
(1984) 36 SASR 101
(1979) 22 SASR 108
(1975) 11 SASR 217
(1996) 71 FCR 285
(2005) 146 IR 375
(2006) 152 IR 347
(2001) 108 IR 228
(1997) 145 ALR 36
(1994) 48 FCR 555
(1988) 166 CLR 59