Standen v Feehan

Federal Court of Australia|2008-10-23|Before: Kiefel JJ, Carr J, Lander J

REASONS FOR JUDGMENT 1 On 3 July 2008 I published my reasons for making a declaration that the respondent, Mr Feehan, contravened s 285E(1) of the Workplace Relations Act 1996 (Cth) (the Act) and I adjourned the proceeding to enable the parties to be heard as to penalty. 2 The respondent is an official of the Construction, Forestry, Mining and Energy Union (CFMEU) which is an organisation which is registered under the Act. He was, at the relevant time, the holder of a permit issued by a Registrar under the Act pursuant to s 285A of the Act. A permit which is issued under s 285A of the Act permits the holder to enter any premises where employees work who are members of the organisation of which the person is an officer or employee for the purpose of investigating a suspected breach of the Act or an award, an order of the Commission or a certified agreement: s 285B(2). 3 It also permits the holder to enter any premises in which work is being carried out on to which an award applies that is binding on the organisation of which the person holding the permit is an officer or employee and employees who are members or eligible to become members of that organisation work on the premises, for the purposes of holding discussions with any of those employees who wish to participate in those discussions: s 285C.

4 Section 285E relevantly provides: (1) A person exercising powers under section 285B or 285C must not intentionally hinder or obstruct any employer or employee. 5 In my decision I found that the respondent had intentionally hindered or obstructed the project manager on the site and a concrete contractor working on the site between 8.15 am and 10.00 am on 5 May 2004. 6 Section 285E(1) is a penalty provision for the purpose of s 285F. A person who contravenes a penalty provision does not commit an offence. However, this Court may make an order imposing a penalty on a person who contravenes a penalty provision: s 285F(2). 7 Section 285F provides that the penalty cannot be more than $10,000 for a body corporate or $2,000 in other cases. In this case, therefore, the maximum penalty that may be imposed is $2,000. 8 The respondent and the applicant addressed me as to penalty. Counsel indicated that the parties had agreed that the appropriate penalty would be somewhere in the range of $1,200 to $1,600, being 60% to 80% of the maximum penalty prescribed under the Act. 9 I was also advised that the parties had agreed that the applicant should have the costs of the proceeding but that they be limited to $2,000. 10 In NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 290-291, Burchett and Kiefel JJ (with whom Carr J generally agreed) discussed the question of the Court's role on fixing the quantum of penalty in circumstances where the parties had indicated a range within which a civil penalty ought to be imposed. That decision has been more recently considered in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; [2004] ATPR 41 and the Court distilled the proposition which emerged from the reasoning in NW Frozen Foods 71 FCR 285 at [51]:

The following propositions emerge from the reasoning in NW Frozen Foods: (i) It is the responsibility of the Court to determine the appropriate penalty to be imposed under s 76 of the TP Act in respect of a contravention of the TP Act. (ii) Determining the quantum of a penalty is not an exact science. Within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another. (iii) There is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy. Accordingly, when the regulator and contravenor have reached agreement, they may present to the Court a statement of facts and opinions as to the effect of those facts, together with joint submissions as to the appropriate penalty to be imposed. (iv) The view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty. In particular, the views of the regulator on matters within its expertise (such as the ACCC's views as to the deterrent effect of a proposed penalty in a given market) will usually be given greater weight than its views on more "subjective" matters. (v) In determining whether the proposed penalty is appropriate, the Court examines all the circumstances of the case. Where the parties have put forward an agreed statement of facts, the Court may act on that statement if it is appropriate to do so. (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. 11 In addition to those propositions, the Court determined that there were five further factors to which regard ought to be had. Four of those are relevant to this proceeding. First, that the regulator's resources will be saved which would allow the regulator to detect other contraventions which would increase the deterrent aspect of the penalty. Secondly, the Court is not required to limit itself to considering whether the penalty is within the permissible range. The Court may wish to take that approach but the Court could address the appropriate range of penalty independently of the parties' proposed figure. Thirdly, the regulator should always justify any discounted penalty to which the regulator has agreed. Lastly, if the Court is of the opinion that the penalty is inappropriate, it may then be appropriate to allow the parties to withdraw their consent to the proposed orders and for the matter to proceed as a contested hearing. 12 After discussing a number of authorities at first instance, the Court concluded that there was nothing to warrant a departure from the principles which had been identified in NW Frozen Foods 71 FCR 285. 13 It was appropriate, therefore, for the parties to agree upon a range and submit that range to this Court for its consideration. 14 In CFMEU v Cole and Allied Operations Pty Ltd (No 2) (1999) 94 IR 231, Branson J considered the circumstances which might be taken into account when assessing a penalty under s 298U of the Act. She said at [8]: The following matters, which are not intended to comprise an exhaustive list, seem to me to be considerations to which the Court may appropriately have regard in determining whether particular conduct calls for the imposition of a penalty, and assuming that it does, the amount of the penalty: (a) The circumstances in which the relevant conduct took place (including whether the conduct was undertaken in deliberate defiance or disregard of the Act). (b) Whether the respondent has previously been found to have engaged in conduct in contravention of Pt XA of the Act. (c) Where more than one contravention of Pt XA is involved, whether the various contraventions are properly seen as distinct or whether they arise out of the one course of conduct. (d) The consequences of the conduct found to be in contravention of Pt XA of the Act. (e) The need, in the circumstances, for the protection of industrial freedom of association. (f) The need, in the circumstances, for deterrence. 15 In CPSU v Telstra Corporation (2001) 108 IR 228, Finkelstein J said at [8] that the objects of imposing a pecuniary penalty may include punishment, deterrence or rehabilitation, or a combination of all three. 16 I do not think in the case of a contravention of s 285E rehabilitation plays any real part. I think punishment plays some part in the purpose for the imposition of a penalty, but I think it plays a lesser part than aspects of deterrence. In my opinion, the principal reason for the imposition of a penalty in relation to a contravention of s 285E of the Act is deterrence. The purpose of the civil penalty is to deter persons, who have been given a right to enter premises by virtue of ss 285B and 285C, from intentionally hindering or obstructing any other employer or employee. In speaking of deterrence, I am speaking of both general and personal deterrence. The purpose of the penalty is to deter the particular person from further contraventions of the section and to deter other like minded persons who might otherwise commit a contravention of s 285E. 17 The Act also seeks to deter persons who hold a permit from contravening s 285E(1) by empowering the Registrar to revoke the contravenor's permit if the Registrar is satisfied that a contravention has occurred: s 285A(3). In considering the appropriate penalty I have taken into account that the finding of a contravention may put the respondent's permit at risk. It was contended by the respondent's counsel that if the respondent lost his permit the respondent may either lose or his job or be forced to take leave during the time when the respondent was without a permit. It was put that the permit was an essential aspect of his employment. However, the respondent's counsel was not able to say that either of those consequences would follow if the respondent were to lose his permit or have it suspended for any length of time. The risk of those events occurring ought to be taken into account but, in the circumstances of this case and in the absence of any evidence from the employer, I do not put great weight upon those risks. 18 I do not intend to recite the facts which I have found and which are contained in my reasons in Standen v Feehan [2008] FCA 1009. Those facts speak for themselves.

19 In considering what ought to be the appropriate penalty, one must have regard to the seriousness of the contravention. The more serious the contravention, the higher the penalty. 20 For the reasons which I have given, I consider that the conduct was serious. The conduct was premeditated and was designed to hinder the contractor and the subcontractor in the carrying out of their work on the day in question. The conduct continued over a relatively long period. The conduct had the consequence that Mr Zito and his employees had to work late into the evening to complete their concreting. 21 I take into account the respondent's personal circumstances. The respondent has been an official of the CFMEU since about 1996. He acted as an official in New South Wales for a period of time from September 1997 to 1998. He has otherwise worked as an official in South Australia. He has not previously been the subject of an order for a civil penalty. 22 He earns approximately $60,000 per annum and has the use of a motor vehicle provided by his employer. He is obliged to support a child of a previous relationship. I was told that he would have to pay any civil penalty himself. He would need, I was told, because of a current liability to the Australian Taxation Office, three months in which to pay the civil penalty. 23 The respondent's counsel addressed the seriousness of the contravention. He asked me to assume that the respondent's conduct was not so much flagrant and determined, but conduct in the nature of someone who has tried to step back and be as close to the line as possible without offending it. He accepted that on my findings the conduct was deliberately provocative which had been engendered by an element of contest and bravado. 24 Notwithstanding that I think the conduct was premeditated, deliberately provocative and serious, I think the range is appropriate having regard to the maximum civil penalty which might be imposed. 25 I fix a civil penalty of $1,300. It would be appropriate to order that the penalty be paid to the Consolidated Revenue Fund: s 356. The applicant did not oppose the respondent having three months to pay any penalty. There will be an order that the respondent pay the sum of $1,300 by way of civil penalty to the Consolidated Revenue Fund within three months. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate: Dated: 23 October 2008 Counsel for the Applicant: Mr M Roder

Solicitor for the Respondent: Lieschke & Weatherill

Workplace Relations Act 1996(Cth)ss 285A, 285B, 285C, 285E, 285F

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