Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia

REASONS FOR JUDGMENT 1 In my reasons for judgment delivered on 26 April 2001 Seven Network (Operations) Ltd v CEPU [2001] FCA 456 I concluded that the respondents ("CEPU", "Mighell" and "McCallum") contravened s 170NC(1) of the Workplace Relations Act 1996 (Cth) ("the Act"). The conduct constituting the breach was summarised by me at [59]-[62]: "59. In the…circumstances there can be little doubt that the conduct of Mighell and McCallum on behalf of the CEPU was coercive conduct. In summary, I am satisfied, on the probabilities, that the following factors constituted coercive conduct of the CEPU for the purposes of s 170NC(1): (a) The CEPU recruited as members Seven Network employees who had the power to interfere with or interrupt the televising of the AFL finals and the Olympic Games but who were not eligible to be members of the union; (b) The CEPU misrepresented to Seven Network that it had up to 80 members employed at Seven Network, including members who had the power to interfere with or interrupt the televising of the AFL finals and the Olympic Games; (c) The misrepresentations were made for the purpose of bringing pressure to bear on Seven Network to accede to the CEPU's demands for a local enterprise agreement for Seven Network's Melbourne employees; (d) At all material times, but unbeknown to Seven Network, the CEPU had only one person, an electrician, who was employed at Seven Network in Melbourne who was eligible to be or was a member of the CEPU and that person had no power or capacity to interfere with or interrupt the televising of the AFL finals and the Olympic Games; (e) The Seven Network employees represented by the CEPU did not form an intent to take industrial action to interfere with or interrupt the televising of the AFL finals or the Olympic Games; (f) Notwithstanding the above matters, in order to bring pressure to bear on Seven Network, the CEPU made media statements implying that industrial action would be, or was likely to be, taken by Seven Network's employees to interfere with and interrupt the televising of the AFL finals and the Olympic Games if the CEPU's demands were not acceded to; (g) On 18 August 2000 the CEPU gave notice to Seven Network under s 170MO of the Act of the intention of its "members" to take industrial action; (h) At the time the s 170MO notice was given the CEPU had no members who had the power or capacity to take the industrial action threatened and the persons it had been representing that had that power or capacity (ie the persons the CEPU recruited as members), did not have an intention at that time to take the action threatened; (i) If the action threatened had been taken by Seven Network's employees (who were not members of the CEPU) that action would not have been protected action under the Act and would therefore have been unlawful; (j) The CEPU did not hold a positive belief that the action threatened was protected industrial action; rather, the CEPU believed that the action threatened may not be protected action but refrained from making any proper enquiry concerning that matter; (k) The conduct engaged in by the CEPU was intended to negate Seven Network's choice in favour of a national, rather than a local, enterprise agreement and to obtain Seven Network's agreement to provide the benefits the CEPU was seeking to gain for Seven Network employees it had recruited as "members" under a local enterprise agreement. 60. The conduct engaged in by the CEPU constituted a threat to take industrial action with intent to coerce Seven Network not to agree to a national enterprise agreement but, rather, to agree to the local enterprise agreement sought by the CEPU. The conduct was coercive as it was a threat to take action that, in all the circumstances, was unlawful, illegitimate or unconscionable. The CEPU, through its officers Mighell and McCallum, was aware of all the circumstances set out in paras (a)-(h), (j) and (k) above that made the threat unlawful, illegitimate or unconscionable. 61. Mighell was actively involved in the conduct set out in sub-paras (a)-(h), (j) and (k) and was personally aware of the matters set out in those sub-paragraphs. Mighell's conduct in relation to the threats he made was such that the threats I have found constituted a breach of s 170NC(1) by the CEPU also constitute a breach by Mighell. 62. McCallum's role as an organiser was secondary to that of Mighell. However, I have found that McCallum's media interviews also constituted threats of industrial action against Seven Network. When McCallum made those threats he was aware of the matters set out in sub-paras (a), (d), (e), (j) and (k). Thus, although McCallum was not a signatory or party to the s 170MO notice, I am satisfied that the threats made by McCallum also breached s 170NC(1). McCallum's secondary role is relevant to penalty but not to breach." 2 Although it was arguable that each threat constituted a separate contravention of s 170NC(1), the applicant ("Seven Network") accepted that it was appropriate to treat the contraventions by each of the respondents as arising out of one course of conduct by that respondent. Consequently, the applicant also accepted that the Court should approach the issue of penalty on the basis that there was only one contravention of s 170NC(1) by each respondent. The parties have made their submissions on penalty on that basis. 3 As Finkelstein J stated in The Age Company Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1757 at [19], the maximum penalties under s 170NF for a breach of, inter alia s 170NC, of $10,000 for a body corporate and $2,000 in all other cases, are not high. 4 His Honour observed at [20]-[21] that matters to be taken into account in determining the appropriate penalty include the cost of the contravention, deterrence, the flagrancy and deliberateness of the breach, the offender's past record of behaviour and any contrition displayed by the offender. Similar observations were made by Branson J in Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 ("CFMEU") at [8]. 5 Plainly, all the circumstances of the particular case must be considered. In the present case a number of factors point to a penalty at the upper end of the range available under s 170NF. They include the following matters: · the seriousness and audacity of the breaches, which I found involved "unlawful, illegitimate or unconscionable" threats to engage in coercive conduct that included interfering with the televising of the AFL finals, the Brownlow Medal count and the Olympic Games; · a carefully planned course of conduct led to the breaches; · substantial harm was capable of being caused by the industrial action threatened; · the threats were maintained until legal proceedings to restrain the conduct threatened had actually been commenced; · an absence of any contrition on the part of any of the respondents. 6 On the other hand, there are some mitigating factors: · the withdrawal of the threats resulted in no harmful consequences actually being suffered; · although I concluded that the CEPU, Mighell or McCallum did not have a belief that the action threatened was protected action and therefore immune from action, I did not find that they knew that the industrial action threatened was not capable of being protected action. 7 Seven Network contended that in assessing penalty I should take into account two fines which had been imposed in respect of past conduct. A fine was imposed upon the CEPU for contravention of the Act, but the particular conduct the subject of the fine occurred after the conduct the subject of the present case. A fine was also imposed by the Court upon Mighell for contempt of court. The conduct in question in that case involved a breach of a Court order made in November 1999 that related to industrial action taken in breach of s 127 of the Act. I regard the prior, but not the subsequent, conduct as having some, but not significant, relevance to penalty in the present case. However, the conduct in question is only relevant in relation to the penalty to be imposed on Mighell. 8 Section 356 of the Act provides for the Court to order that the penalty imposed be paid into the Consolidated Revenue Fund or to a particular organisation or person. Where the conduct in question targets a particular organisation or person and that person is authorised to commence and commences a proceeding for the imposition of a penalty, in the usual course it is appropriate to order that the penalty be paid to the organisation or person: see ss 170NF(7)(c) and 356 of the Act, Gibbs v The Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216 at 223, CFMEU at 233. I see no reason for departing from that course in the present case. 9 In all the circumstances I propose to order that the CEPU pay to Seven Network a penalty of $7,500; Mighell pay to Seven Network a penalty of $1,500 and McCallum pay to Seven Network a penalty of $500. As I explained in my reasons for judgment, I regard Mighell, individually and acting on behalf of the CEPU, as having played the primary role in the present matter and McCallum as having played a subsidiary or secondary role. Accordingly, the penalty imposed upon McCallum is substantially less than that imposed on Mighell. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.