FEDERAL COURT OF AUSTRALIA

Director of the Fair Work Building Industry Inspectorate v O’Connor [2016] FCA 415

ORDERS

THE COURT DECLARES THAT:

1.    The First Respondent, James O’Connor, contravened s 500 of the Fair Work Act 2009 (Cth) (the FW Act) on 31 March 2014 while at the construction site known as the Adelaide High School project located on West Terrace, Adelaide (the Site), at which Sarah Constructions Pty Ltd (Sarah Constructions) was the head contractor, by acting in an improper manner while seeking to exercise rights in accordance with Pt 3-4 of the FW Act by:

(a)    entering the Site despite not having provided an entry notice to the occupier of the premises as required by s 487 of the FW Act at least 24  hours before his entry to the Site and despite having been refused entry by the occupier;

(b)    remaining on the Site for 20 minutes in the knowledge that he had been refused entry;

(c)    holding discussions with employees while on the Site in places which had not been agreed with Sarah Constructions, in contravention of s 492 of the FW Act.

2.    By reason of s 793 of the FW Act, the Second Respondent, the Construction, Forestry, Mining and Energy Union (the CFMEU), contravened s 500 by the conduct of Mr O’Connor constituting the contravention which is the subject of the first declaration herein.

THE COURT ORDERS THAT:

3.    The First Respondent, Mr O’Connor, pay a pecuniary penalty of $2,500 in respect of the contravention of s 500 which is the subject of the subject of the first declaration herein.

4.    The Second Respondent, the CFMEU, pay a pecuniary penalty of $27,500 in respect of the contravention of s 500 which is the subject of the subject of the second declaration herein.

5.    Pursuant to s 546(3) of the FW Act, each of the pecuniary penalties is to be paid to the Commonwealth of Australia.

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

ORDERS

THE COURT DECLARES THAT:

1.    The First Respondent, Michael McDermott, contravened s 500 of the Fair Work Act 2009 (Cth) (the FW Act) on 5 May 2014 at the construction site known as the Art Apartments project located at 242 Flinders Street, Adelaide (the Site), at which AGC Projects Pty Ltd (AGCP) was the head contractor, by acting in an improper manner while seeking to exercise rights in accordance with Pt 3-4 of the FW Act by:

(a)    entering the Site with the Second Respondent, Luke Stephenson, the former Third Respondent, Muhammed Kalem, and the Fourth Respondent, Derek Christopher, despite not having provided notice of entry to the occupier of the Site as required by s 487 of the FW Act at least 24  hours before his entry to the Site and despite having been refused entry by the occupier;

(b)    failing to comply with the request of a representative of the occupier that he produce an entry notice or entry permit, in contravention of s 489 of the FW Act;

(c)    holding discussions with employees in places on the Site which had not been agreed with AGCP, in contravention of s 492 of the FW Act.

2.    By reason of s 793 of the FW Act, the Fifth Respondent, the Construction, Forestry, Mining and Energy Union (CFMEU), contravened s 500 by the conduct of Mr McDermott constituting the contravention which is the subject of the first declaration herein.

3.    The Second Respondent, Luke Stephenson, contravened s 500 of the FW Act on 5 May 2014, at the Site by acting in an improper manner while seeking to exercise rights in accordance with Pt 3-4 of the FW Act by:

(a)    entering the Site with the First Respondent, Michael McDermott, the former Third Respondent, Muhammed Kalem, and the Fourth Respondent, Derek Christopher, despite not having provided notice of entry to the occupier of the Site as required by s 487 of the FW Act at least 24  hours before his entry to the Site and despite having been refused entry by the occupier;

(b)    failing to comply with the request of a representative of the occupier that he produce an entry notice or entry permit, in contravention of s 489 of the FW Act;

(c)    holding discussions with employees in places on the Site which had not been agreed with AGCP, in contravention of s 492 of the FW Act.

4.    By reason of s 793 of the FW Act, the CFMEU contravened s 500 by the conduct of Mr Stephenson constituting the contravention which is the subject of the third declaration herein.

5.    By reason of s 550 of the FW Act, the Fourth Respondent, Derek Christopher, contravened s 500 by his involvement in the contraventions of Mr McDermott and Mr Stephenson which are the subject of the first and third declarations herein.

6.    By reason of s 793 of the FW Act, the CFMEU contravened s 500 by the conduct of Mr Christopher constituting the contravention which is the subject of the fifth declaration herein.

THE COURT ORDERS THAT:

7.    The First Respondent, Mr McDermott, pay a pecuniary penalty of $3,750 in respect of the contravention of s 500 which is the subject of the first declaration herein.

8.    The Fifth Respondent, the CFMEU, pay a pecuniary penalty of $30,000 in respect of the contravention of s 500 which is the subject of the second declaration herein.

9.    The Second Respondent, Mr Stephenson, pay a pecuniary penalty of $2,500 in respect of the contravention of s 500 which is the subject of the third declaration herein.

10.    The CFMEU pay a pecuniary penalty of $25,000 in respect of the contravention of s 500 which is the subject of the fourth declaration herein.

11.    The Fourth Respondent, Mr Christopher, pay a pecuniary penalty of $3,000 in respect of the contravention of s 500 which is the subject of the fifth declaration herein.

12.    The CFMEU pay a pecuniary penalty of $30,000 in respect of the contravention of s 500 which is the subject of the sixth declaration herein.

13.    Pursuant to s 546(3) of the FW Act, each of the pecuniary penalties is to be paid to the Commonwealth of Australia.

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

ORDERS

THE COURT DECLARES THAT:

1.    The First Respondent, Michael McDermott, contravened s 500 of the Fair Work Act 2009 (Cth) (the FW Act) on 6 May 2014 at the construction site known as the Ibis Hotel project located at 122 Grenfell Street, Adelaide (the Site), at which Watpac Construction Pty Ltd (Watpac) was the head contractor, by acting in an improper manner while seeking to exercise rights in accordance with Pt 3-4 of the FW Act by:

(a)    entering the Site with the Second Respondent, Derek Christopher, despite not having provided an entry notice to the occupier of the Site as required by s 487 of the FW Act at least 24  hours before his entry to the Site and despite having been refused entry by the occupier;

(b)    remaining on the Site for approximately 45 minutes despite the occupier of the Site having directed him to leave;

(c)    holding discussions with employees while on the Site in places which had not been agreed with Watpac, in contravention of s 492 of the FW Act.

2.    By reason of s 793 of the FW Act, the Third Respondent, the Construction, Forestry, Mining and Energy Union (the CFMEU), contravened s 500 by the conduct of Mr McDermott constituting the contravention which is the subject of the first declaration herein.

3.    By reason of s 550 of the FW Act, the Second Respondent, Derek Christopher, contravened s 500 by his involvement in the contraventions of Mr McDermott which are the subject of the first declaration herein.

4.    By reason of s 793 of the FW Act, the CFMEU contravened s 500 by the conduct of Mr Christopher constituting the contravention which is the subject of the third declaration herein.

THE COURT ORDERS THAT:

5.    The First Respondent, Mr McDermott, pay a pecuniary penalty of $3,750 in respect of the contravention of s 500 which is the subject of the first declaration herein.

6.    The CFMEU pay a pecuniary penalty of $30,000 in respect of the contravention of s 500 which is the subject of the second declaration herein.

7.    The Second Respondent, Mr Christopher, pay a pecuniary penalty of $3,000 in respect of the contravention of s 500 which is the subject of the third declaration herein.

8.    The CFMEU pay a pecuniary penalty of $30,000 in respect of the contravention of s 500 which is the subject of the fourth declaration herein.

9.    Pursuant to s 546(3) of the FW Act, each of the pecuniary penalties is to be paid to the Commonwealth of Australia.

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

ORDERS

THE COURT DECLARES THAT:

1.    The First Respondent, David Bolton, contravened s 500 of the Fair Work Act 2009 (Cth) (the FW Act) on 28 April 2014 at the construction site known as the Minda Homes project located at Repton Road, Somerton Park, South Australia (the Site), at which Badge Constructions Pty Ltd (Badge) was the head contractor, by acting in an improper manner while seeking to exercise rights in accordance with Pt 3-4 of the FW Act by:

(a)    seeking to enter the Site, with the Second Respondent, Michael Huddy, by stating to a representative of the occupier of the Site who had asked to see his entry notice, “We don’t need a notice”, which statement he knew to be false;

(b)    entering the Site with the Mr Huddy, despite not having provided an entry notice to the occupier of the Site as required by s 487 of the FW Act at least 24  hours before their entries to the Site and despite having been informed by the occupier that they were not permitted to do so;

(c)    holding discussions with employees while on Site in places which had not been agreed with Badge, in contravention of s 492 of the FW Act;

(d)    ignoring the request of the occupier of the Site that he leave the Site and by remaining on the Site with Mr Huddy for approximately 30 minutes;

(e)    failing to comply with the request of the occupier of the Site that he produce a notice of entry or his entry permit, in contravention of s 489 of the FW Act.

2.    By reason of s 793 of the FW Act, the Third Respondent, the Construction, Forestry, Mining and Energy Union (the CFMEU), contravened s 500 by the conduct of Mr Bolton constituting the contravention which is the subject of the first declaration herein.

3.    The Second Respondent, Michael Huddy, contravened s 500 of the FW Act on 28 April 2014, the Site by acting in an improper manner while seeking to exercise rights in accordance with Pt 3-4 of the FW Act by:

(a)    seeking to enter the Site with the First Respondent, David Bolton, pursuant to the false statement by Mr Bolton to a representative of the occupier of the Site who had asked to see his entry notice “We don’t need a notice”;

(b)    entering the Site with Mr Bolton, despite not having provided an entry notice to the occupier of the Site as required by s 487 of the FW Act at least 24  hours before their entries to the Site and despite having been informed by the occupier that they were not permitted to do so;

(c)    holding discussions with employees while on Site in places which had not been agreed with Badge, in contravention of s 492 of the FW Act;

(d)    ignoring the request of a representative of the occupier of the Site that he leave the Site and by remaining on the Site with Mr Bolton for approximately 30 minutes;

(e)    failing to comply with the request of the occupier of the Site that he produce a notice of entry or his entry permit, in contravention of s 489 of the FW Act.

4.    By reason of s 793 of the FW Act, the CFMEU contravened s 500 by the conduct of Mr Huddy constituting the contravention which is the subject of the third declaration herein.

THE COURT ORDERS THAT:

5.    The First Respondent, Mr Bolton, pay a pecuniary penalty of $2,000 in respect of the contravention of s 500 which is the subject of the first declaration herein.

6.    The CFMEU pay a pecuniary penalty of $24,000 in respect of the contravention of s 500 which is the subject of the second declaration herein.

7.    The Second Respondent, Mr Huddy, pay a pecuniary penalty of $1,500 in respect of the contravention of s 500 which is the subject of the third declaration herein.

8.    The CFMEU pay a pecuniary penalty of $24,000 in respect of the contravention of s 500 which is the subject of the fourth declaration herein.

9.    Pursuant to s 546(3) of the FW Act, each of the pecuniary penalties is to be paid to the Commonwealth of Australia.

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

ORDERS

THE COURT DECLARES THAT:

Section 500

1.    The First Respondent, Michael McDermott, contravened s 500 of the Fair Work Act 2009 (Cth) (the FW Act) on 5 May 2014 at the construction site known as the Quest South project located at 379 King William Street, Adelaide (the Site), at which G Colangelo Development Company Pty Ltd (Colangelo) was the head contractor, by acting in an improper manner while seeking to exercise rights in accordance with Pt 3-4 of the FW Act by:

(a)    seeking to enter the Site, along with two other CFMEU officials and an unidentified person who appeared to be a CFMEU official (the other three union officials) despite not having provided an entry notice to the occupier of the Site, as required by s 487 of the FW Act at least 24 hours before the entry to the Site;

(b)    entering the Site along with the other three union officials despite having been refused permission to do so by the occupier of the Site;

(c)    failing to comply with the request of the occupier of the Site that he produce a notice of entry or entry permit in contravention of s 489 of the FW Act;

(d)    remaining on the Site with the other three union officials despite the occupier of the Site continuing to refuse them further access to the building on Site;

(e)    remaining on the Site when a further group of four CFMEU officials attended seeking entry to the Site and continuing (by the conduct of the other officials) to press to be allowed to speak to employees on the Site;

(f)    holding discussions with employees on the Site when there were present on the Site eight people who were either CFMEU officials or persons who had attended with the CFMEU officials.

2.    By reason of s 793 of the FW Act, the Fifth Respondent, the Construction, Forestry, Mining and Energy Union (the CFMEU), contravened s 500 by the conduct of Mr McDermott constituting the contravention which is the subject of the first declaration herein.

3.    The Second Respondent, Luke Stephenson, contravened s 500 of the FW Act on 5 May 2014 at the Site by acting in an improper manner while seeking to exercise rights in accordance with Pt 3-4 of the FW Act by:

(a)    seeking to enter the Site, along with two other CFMEU officials and an unidentified person who appeared to be a CFMEU official (the other three union officials) despite not having provided an entry notice to the occupier of the Site as required by s 487 of the FW Act at least 24 hours before the entry to the Site;

(b)    entering the Site along with the other three union officials despite having been refused permission to do so by the occupier of the Site;

(c)    failing to comply with the request of the occupier of the Site that he produce a notice of entry or his entry permit, in contravention of s 489 of the FW Act;

(d)    being present when the Third Respondent, Derek Christopher, used his elbow and shoulder to push a representative of the occupier of the premises away from the doorway which provided further access into the building on Site (the Christopher incident) and by not disassociating himself from that conduct;

(e)    remaining on Site following the Christopher incident along with the other three union officials despite the occupier of the Site continuing to refuse them further access to the building on Site;

(f)    remaining on the Site when a further group of four CMFEU officials attended seeking entry to the Site and continuing to press to be allowed to speak to employees on the Site;

(g)    holding discussions with employees on the Site when there were present on the Site eight people who were either CFMEU officials or persons who had attended with the CFMEU officials.

4.    By reason of s 793 of the FW Act, the CFMEU contravened s 500 by the conduct of Mr Stephenson constituting the contravention which is the subject of the third declaration herein.

5.    By reason of s 550 of the FW Act, the Third Respondent, Derek Christopher, contravened s 500 by being involved in the contraventions of Mr McDermott and Mr Stephenson which are the subject of the first and third declarations herein, including by his conduct in the Christopher incident.

6.    By reason of s 793 of the FW Act, the CFMEU contravened s 500 by the conduct of Mr Christopher constituting the contravention which is the subject of the fifth declaration herein.

Section 348

7.    The Second Respondent, Luke Stephenson, contravened s 348 of the FW Act on 5 May 2014 at the Site by taking action against Colangelo with intent to coerce it to comply with a lawful request for the purposes of s 347(b)(iv) of the FW Act by:

(a)    seeking entry along with three other union officials;

(b)    being present at the Christopher incident and aware of its occurrence;

(c)    approaching a representative of the occupier of the Site following the Christopher incident and saying “Come on Rob, let us on Site, let us upstairs”, which request was refused by the occupier;

(d)    then repeating his request to the representative of the occupier of the Site to gain entry upstairs in the presence of other CFMEU officials, whose presence added to the force of his request.

8.    By reason of s 793 of the FW Act, the CFMEU contravened s 348 by the conduct of Mr Stephenson constituting the contravention which is the subject of the seventh declaration herein.

9.    The Third Respondent, Derek Christopher, contravened s 348 of the FW Act on 5 May 2014 at the Site by taking action against Colangelo with intent to coerce it to comply with a lawful request for the purposes of s 347(b)(iv) of the FW Act by:

(a)    seeking entry along with three other union officials;

(b)    engaging in the conduct constituting the Christopher incident;

(c)    being present, along with the three other union officials, when Mr Stephenson approached a representative of the occupier of the Site following the Christopher incident and said “Come on Rob, let us on Site, let us upstairs” which request was refused by the occupier;

(d)    being present when Mr Stephenson repeated his request to the representative of the occupier of the Site to gain entry upstairs, and by his presence adding to the force of the request.

10.    By reason of s 793 of the FW Act, the Fifth Respondent, the CFMEU, contravened s 348 by the conduct of Mr Christopher constituting the contravention which is the subject of the ninth declaration herein.

THE COURT ORDERS THAT:

11.    The First Respondent, Mr McDermott, pay a pecuniary penalty of $3,750 in respect of the contravention of s 500 which is the subject of the first declaration herein.

12.    The Fifth Respondent, the CFMEU, pay a pecuniary penalty of $30,000 in respect of the contravention of s 500 which is the subject of the second declaration herein.

13.    The Second Respondent, Mr Stephenson, pay a pecuniary penalty of $2,500 in respect of the contravention of s 500 which is the subject of the third declaration herein.

14.    The CFMEU pay a pecuniary penalty of $25,000 in respect of the contravention of s 500 which is the subject of the fourth declaration herein.

15.    The Third Respondent, Mr Christopher, pay a pecuniary penalty of $4,000 in respect of the contravention of s 500 which is the subject of the fifth declaration herein.

16.    The CFMEU pay a pecuniary penalty of $32,500 in respect of the contravention of s 500 which is the subject of the sixth declaration herein.

17.    Mr Stephenson pay a pecuniary penalty of $2,000 in respect of the contravention of s 348 which is the subject of the seventh declaration herein.

18.    The CFMEU pay a pecuniary penalty of $20,000 in respect of the contravention of s 500 which is the subject of the eighth declaration herein.

19.    Mr Christopher pay a pecuniary penalty of $2,500 in respect of the contravention of s 348 which is the subject of the ninth declaration herein.

20.    The CFMEU pay a pecuniary penalty of $24,000 in respect of the contravention of s 348 which is the subject of the tenth declaration herein.

THE COURT FURTHER ORDERS:

21.    Pursuant to s 546(3) of the FW Act, each of the pecuniary penalties is to be paid to the Commonwealth of Australia.

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

REASONS FOR JUDGMENT

WHITE J:

1    This judgment concerns the conduct of officials of the CFMEU at five construction sites in Adelaide in March, April and May 2014. That conduct was the subject of five separate actions commenced by the Director: Actions SAD 302/2014, SAD 303/2014, SAD 304/2014, SAD 305/2014 and SAD 306/2014.

2    In all actions, the Director alleged that the CFMEU and its officials contravened s 500 of the Fair Work Act 2009 (Cth) (the FW Act). In addition, in Action SAD 306/2014, the Director alleged that the second and third respondents (Mr Stephenson and Mr Christopher) contravened s 348 of the FW Act by engaging in coercive conduct.

3    In Action SAD 305/2014, the respondents (Mr Bolton, Mr Huddy and the CFMEU) admitted the Director’s allegations in their filed defence. The penalty hearing in that matter was adjourned pending the determination of the remaining matters.

4    The trials in Actions SAD 302/2014, SAD 303/2014, SAD 304/2014 and SAD 306/2014 were to commence on 15 October 2015. However, at the commencement of the hearing, counsel informed the Court that all matters had been resolved. The Director withdrew some of his allegations and the respondents admitted the remainder. The resolution had the effect, amongst other things, that the Director no longer makes any allegation against Mr Kalem, who is the third respondent in Action SAD 303/2014.

5    This judgment contains the Court’s reasons with respect to penalties and other relief in the five actions. It is the third of the judgments which I have delivered today concerning allegations by the Director against the CFMEU and its officials. Because several of the matters arising in these proceedings are common to the issues which I have addressed in DFWBII v CFMEU [2016] FCA 413 (the Lend Lease Sites Penalty Judgment), I incorporate passages from that judgment into these reasons, by reference and without repeating the content. The incorporated passages are the paragraphs under the headings in that judgment listed below:

Penalties: general principles                [12]-[22]

The significance of previous contraventions        [23]-[32]

The CFMEU record                    [33]-[38]

Contraventions of s 500 in context            [39]-[47]

Single penalties                    [48]-[58]

The totality principle                    [59]-[64]

Declarations: general principles            [80]-[82]

Actions SAD 302-306/2014: General matters

6    The standing of the Director to bring each action was admitted.

7    Each respondent in each action admitted that the CFMEU is, and was at all relevant times, an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth) and that it is (and was at material times), by reason of being so registered, a body corporate (s 27).

8    The respondents admitted that each of Mr O’Connor, Mr Stephenson, Mr Bolton and Mr Huddy was, at material times, an employed organiser within the CFMEU; that Mr McDermott was, at material times, the Assistant Secretary of the Construction and General Division of the CFMEU in South Australia; and that Mr Christopher was, at material times, the Vice-President of the Construction and General Division of the Victorian Branch of the CFMEU.

9    It was common ground that, at relevant times, each of the individual respondents other than Mr Christopher held an entry permit issued under s 512 of the FW Act.

10    None of the respondents had given any entry notice under s 487 of the FW Act to the occupier of the premises he entered, let alone an entry notice complying with s 518, and none held an exemption certificate issued under s 519 of the FW Act which relieved him of the obligation to do so.

11    The CFMEU accepted that each individual respondent was, in relation to the conduct giving rise to the contraventions, acting within the scope of his actual or apparent authority so that the conduct of each individual respondent constituting the admitted contraventions was to be taken to be its conduct (s 793 of the FW Act), with the consequence that it too had committed each contravention.

12    I am satisfied that it is appropriate to proceed on the basis of the respondents’ admissions and the agreed facts: Evidence Act 1995 (Cth), s 191.

Action SAD 302/2014 – Adelaide High School Site: 31 March 2014

13    In 2012 and 2013, Sarah Constructions Pty Ltd (Sarah Constructions) was the principal contractor on a construction project at the Adelaide High School on West Terrace, Adelaide.

14    The Director alleged improper conduct, in contravention of s 500, by the first respondent (Mr O’Connor) and, in consequence, by the second respondent, the CFMEU, at the Adelaide High School site on 31 March 2014.

15    The Director relied upon the admissions by the CFMEU and Mr O’Connor in their amended defence dated 15 October 2015, a statement of agreed facts dated 16 October 2015 and the affidavits from two witnesses, both employees of Sarah Constructions. The first, Mr Pongrac, was the Site Supervisor and the second, Mr Despot, a Project Assistant.

16    On the basis of the respondents’ admissions, the agreed facts and the evidence of Mr Pongrac and Mr Despot, I make the following findings.

17    Mr O’Connor and a Mr Benstead entered Sarah Constructions’ site office at the Adelaide High School shortly after 1:30 pm. Both Mr O’Connor and Mr Benstead were wearing clothing with the CFMEU logos. Mr O’Connor, but not Mr Benstead, made an entry in the visitors’ book. Instead of printing his full name as required, Mr O’Connor entered only the name “Jim” and, in the space for “person visiting”, the word “site”.

18    There are slight differences in the accounts of Mr Pongrac and Mr Despot as to what happened next. They are of a kind to be expected in the accounts of two persons reporting the same conversation. When there are differences, I consider it appropriate to accept that of Mr Despot because he was not an active participant in the conversations and was able to give his full attention to what each participant said. I find that the following conversation occurred:

Mr Pongrac:        Jimmy, what are you doing here?

Mr O’Connor:        Rob, we’re checking on members.

Mr Pongrac:    You know the rules Jimmy, you are not allowed on site without a right of entry permit.

Mr O’Connor:    We can’t get permits all the time, we were just up the road.

Mr Pongrac:    I’m going to have to refuse you entry.

19    Mr Pongrac’s evidence was that Mr O’Connor had said “we want to check records of members on site” and not “we’re checking on members”. I do not regard this difference as material and, as I say, prefer the account of Mr Despot.

20    A discussion about rights of entry continued over the next 5-10 minutes with Mr Benstead doing most of the talking. During the course of the discussion, Mr Pongrac said repeatedly “you don’t have a notice – you can’t come on”. At one stage Mr Benstead said, in what Mr Despot described as an aggressive manner, “you’ve got your job to do, we’ve got our job to do, and we have to check on the guys”. Later, Mr Benstead asked Mr Pongrac “what happens if we go on site?”. Mr Pongrac responded by telling him that he was not wearing the correct personal protective equipment (PPE) and so would not be permitted on the site in any event. That was because the men were not wearing long sleeved shirts, safety vests or hard hats. At about this time in the discussion, Mr Pongrac said “you haven’t got the correct PPE on, and I haven’t given you permission, I’m denying entry”.

21    Mr O’Connor went to his car and put on the correct PPE.

22    Mr Benstead and Mr Pongrac had the following exchange:

Mr Benstead:        What trades are on site?

Mr Pongrac:    It doesn’t matter what we’ve got, you’ve got no right, I’m refusing you.

23    Both Mr O’Connor and Mr Benstead then moved out of the site office to the entrance to the construction area on the site. Mr O’Connor entered the construction area but Mr Benstead did not. Mr Despot stayed with Mr Benstead and Mr Pongrac followed Mr O’Connor into the construction area. At about this time, Mr Pongrac told Mr O’Connor “the only people that come under your banner are Lift Form”.

24    While Mr O’Connor and Mr Pongrac were in the construction area, Mr O’Connor said to Mr Pongrac “I’m sorry I have to do this”. Shortly afterwards he apologised again. It was an agreed fact that Mr O’Connor made these apologies after Mr Pongrac had told him that his entry would require him to do a lot of “paperwork”. They were apologies that Mr Pongrac would have to do that work. After the apologies, Mr Pongrac reiterated that Sarah Constructions expected that the right of entry processes would be followed. He said words to Mr O’Connor to the effect of “you don’t have a valid permit so you shouldn’t be here”.

25    While Mr O’Connor was with Mr Pongrac in the construction area of the site, he spoke to about four persons concerning their union membership. He checked whether the CFMEU had their current details and whether their membership was up to date. These conversations occurred wherever the workers happened to be on the site at the time and not in the areas designated by Sarah Constructions for meetings between union officials exercising their rights of entry, namely, the meal and amenities rooms – see s 492 of the FW Act.

26    Mr O’Connor and Mr Pongrac then returned to the location of Mr Benstead and Mr Despot. It was an agreed fact that Mr O’Connor was on the construction area of the site for no more than 20 minutes. Mr O’Connor thanked Mr Pongrac, who reiterated that he required CFMEU officials to provide notices of entry.

27    The Director did not allege that Mr Benstead had contravened s 500 by his conduct at the Adelaide High School site on 31 March 2014.

28    Mr O’Connor admitted that his exercise of the right granted by s 484 of the Act had been improper because he had entered the site without providing an entry notice and after having been refused entry by Mr Pongrac, because he had remained on the site for about 20 minutes during which time he had held discussions with workers, and because he had held those discussions in rooms or areas which had not been agreed with Sarah Constructions.

Action SAD 303/2014 – Art Apartments Project: 5 May 2014

29    In May 2014, AGC Projects Pty Ltd (AGCP) was the head contractor on a construction project known as the Art Apartments at 242 Flinders Street, Adelaide. Mr Moschou was a director of AGCP and Mr Raptopolous an Assistant Project Manager.

30    The Director alleged contraventions of s 500 at the Art Apartments site on 5 May 2014 by the first respondent (Mr McDermott), the second respondent (Mr Stephenson), the fourth respondent (Mr Christopher) (by his involvement as an accessory) and the fifth respondent (the CFMEU). As already noted, the Director discontinued his allegations against the third respondent, Mr Kalem.

31    The Director tendered statements by each of Mr Moschou and Mr Raptopolous and relied upon the admissions made by the respondents in their amended defence. On the basis of those documents, I make the following findings.

32    On 5 May 2014, at about 8 am, Mr McDermott, Mr Stephenson, Mr Kalem and Mr Christopher attended the Art Apartments site. Shortly after arriving at the site, Mr McDermott, in the presence of the Mr Stephenson and Mr Christopher, spoke to Mr Moschou and Mr Raptopolous. A conversation to the following effect occurred:

Mr Moschou:        What’s the reason for your visit?

Mr McDermott:        We’re just here to go for a walk around.

Mr Moschou:    Well you don’t have any right of entry permits and we have not been notified of any union visit. Can I please see your appropriate work permits?

Mr McDermott ignored this request and Mr Moschou repeated it. None of the men complied with his request. Mr Moschou then said to Mr McDermott, Mr Stephenson and Mr Christopher words to the effect:

Please leave the site. It is an occupational health and safety issue. If you cannot provide the paper work or white cards, then I can’t let you onto the site.

Mr McDermott responded:

I don’t have any. I’m going to walk on site. What are you going to do about it?

33    I record that this response by Mr McDermott was not admitted in the pleaded defences of Mr McDermott, Mr Stephenson, Mr Christopher and the CFMEU. They pleaded that they “[did] not know and cannot admit” this allegation. This was a curious plea, given that Mr McDermott was alleged to have spoken the words and that the other individual respondents were alleged to have been present when he did so. Nevertheless, it requires the Court to make a finding of fact on the evidence. This was the evidence of Mr Moschou and Mr Raptopolous as none of the respondents adduced any evidence.

34    The Director relied, in particular, upon notes which Mr Moschou had dictated to Mr Raptopolous shortly after 9 am on 5 May 2014. It is reasonable to infer (and I do) that at the time Mr Moschou dictated those notes, the conversation was still fresh in his mind. Mr Moschou recorded Mr McDermott’s response to his request in the terms I have set out above.

35    I was satisfied on this evidence that Mr Moschou and Mr Raptopoulos did record accurately what Mr McDermott said and that Mr McDermott spoke the words which Mr Moschou attributed to him. These were the words set out above.

36    Mr Moschou then said to Mr McDermott words to the effect of “well then, can you please leave my site”. Mr McDermott, and those accompanying him, ignored this request. They moved further onto the site and went to Level 13. Mr Moschou followed, along with Mr Raptopolous and the AGCP safety officer, Mr Muldoon. Mr Moschou said to Mr McDermott and Mr Christopher words to the effect of “can I see your federal work permits”. Neither of Mr McDermott or Mr Christopher responded to that request.

37    Mr McDermott, Mr Stephenson and Mr Christopher then moved through the building making their way down to lower floors. As they did so, they checked for safety issues and spoke to workers about pay and conditions and had them identify their particular employers. From time to time, Mr McDermott took photographs. In the main, it was Mr Stephenson and Mr Christopher who spoke to the workers about their pay and conditions.

38    When the group had first started to move to Level 13, Mr Raptopolous had, at Mr Moschou’s request, telephoned the Fair Work Building Industry Inspectorate (FWBII). This resulted in three inspectors attending the site at about 8:30 am. In their presence, Mr Moschou again asked the men “can I see your federal work permits”, but his request was ignored.

39    Mr McDermott, Mr Stephenson and Mr Christopher remained on the site until about 8.45 am, a total of approximately 45 minutes. They held discussions with some employees and attempted to hold discussions with others. They did this in the work area of the site and not, as required by s 492 of the Act, in areas agreed with AGCP.

40    Each of Mr McDermott, Mr Stephenson and the CFMEU acknowledge that Mr Dermott and Mr Stephenson were, on 5 May 2014, exercising or, in the alternative, seeking to exercise, rights in accordance with s 484 of the Act. Mr McDermott and Mr Stephenson admit that, by the conduct just described, they contravened s 500 of the FW Act by acting in an improper manner. Their contraventions arose from their conduct in entering the Art Apartments Project site without having provided notice of entry as required by s 487, their defiance of Mr Moschou’s statement that they were not permitted onto the site and his request that they leave, their failure to produce an entry notice or their entry permits in response to Mr Moschou’s requests, and their holding of discussions with employees while they were carrying out their work and in places on the site which had not been agreed with AGCP.

41    Mr Christopher, who did not hold an entry permit issued pursuant to s 512 of the FW Act, admits that he was involved in the contraventions of Mr McDermott and Mr Stephenson within the meaning of s 550(1) of the FW Act and therefore that he too contravened s 500.

42    The CFMEU acknowledges that, by reason of the conduct of Mr McDermott, Mr Stephenson and Mr Christopher, it contravened s 500 of the FW Act three times.

Action SAD 304/2014 – Ibis Hotel site: 6 May 2014

43    In 2014, Watpac Construction Pty Ltd (Watpac), formerly known as Watpac Construction (SA) Pty Ltd, was the head contractor on the construction of the Ibis Hotel at 122 Grenfell Street, Adelaide. Mr Whyte was its Project Manager and Mr Kamminga its Site Manager.

44    The Director’s allegations of contraventions at the Ibis Hotel site relate to the conduct of the first respondent, Mr McDermott, and the second respondent, Mr Christopher. The latter’s contravention arises by reason of his involvement as an accessory in Mr McDermott’s conduct. The CFMEU admits that it twice contravened s 500 by the conduct of Mr McDermott and Mr Christopher.

45    On the basis of the admissions made by the respondents in their amended defence and the affidavits of Mr Whyte and Mr Kamminga, I make the following findings.

46    Mr McDermott and Mr Christopher entered the site at about 8:45 am on 6 May 2014 and went to Mr Kamminga’s office. He was on the telephone at the time so the two men went into the adjacent office of Mr Whyte. As Mr McDermott left Mr Kamminga’s office, he said something about the entitlements of the employees of Adelaide Partitions and Ceilings (APC), a contractor carrying out work on the site.

47    Both Mr McDermott and Mr Christopher were wearing personal protective equipment (PPE) containing the CFMEU insignia.

48    Mr McDermott told Mr Whyte that he and Mr Christopher were going onto the site to see about a dozen workers from APC. He showed Mr Whyte a handwritten list of names and said that he wanted to give those workers a “CBUS form” as they were registered with CBUS but had only “a 9 instead of an 11”. The list shown to Mr Whyte contained 11 names and the note “11 to fill in apps”.

49    A conversation then ensued between Mr Whyte, Mr McDermott and Mr Christopher to the following effect:

Mr Whyte:        Do you have a right of entry?

Mr McDermott:        No.

Mr Whyte:    Can the forms be given to their employer or done during their meal break?

Mr McDermott:    No, we will do it ourselves to explain the form to the guys.

Mr Whyte

(to Mr Christopher):    Can I see your permit?

Mr Christopher:    No, we aren’t here exercising our right of entry.

Mr Whyte:    Can I see your permit so I can verify who you are, because I haven’t seen you before?

Mr Christopher:    Derek Christopher ... your Nick knows who I am and if you speak to him he will tell you I am a good bloke.

Mr Whyte:    You mean Nick Pavlovic in Victoria [the Watpac State Manager in Victoria]?

Mr Christopher:    Yes.

50    Mr Christopher’s statement that he and Mr McDermott were not “exercising our right of entry” was false. It implied that he (Mr Christopher) had a right of entry which, because he did not hold an entry permit, was not true. Further, Mr Christopher must have known that Mr McDermott was purporting to exercise a right of entry at the time. Otherwise he would not have had any entitlement at all to be on the site, and yet he behaved as though he did.

51    Both Mr McDermott and Mr Christopher signed the visitors’ register and then walked on to the site. One of them (Mr Whyte could not recall whom) said words to the effect of “we aren’t here like last week, and we’ll be done quickly”. Mr Whyte inferred that he was referring to an incident on the site in the previous week which had involved the CFMEU.

52    Mr Whyte then asked the Watpac Site Safety Officer, Mr McManus, to monitor Mr McDermott and Mr Christopher to ensure compliance with safety conditions. Mr Whyte said, and I accept, that it was normal practice for Watpac to have a safety officer accompany union officials on the site.

53    Mr Whyte returned to his office and telephoned Mr Flynn, an inspector at the FWBII. Mr Flynn told Mr Whyte that Mr Christopher did not hold an entry permit issued pursuant to s 512 of the FW Act. He recommended that Mr Whyte call the police.

54    Mr Whyte then asked Mr Kamminga to accompany him to level 12 of the building under construction as he believed that Mr McManus, Mr McDermott and Mr Christopher were at that level. However, when Mr Whyte and Mr Kamminga reached level 12, Mr McDermott and Mr Christopher were not there. Mr Whyte and Mr Kamminga then walked down the stairs and found Mr McDermott and Mr Christopher at level one. A conversation to the following effect then ensued:

Mr Whyte

(to Mr Christopher):    You need to leave the site particularly as I now know you don’t have a federal permit.

Mr Christopher:    I don’t believe in those permits and very soon neither will anyone else.

Mr Whyte

(to Mr McDermott):    You need to leave the site.

55    Mr McDermott did not respond but said “I’ve got about half the guys on site, the others aren’t here anymore”. At the same time he showed Mr Whyte the handwritten list of names which now had ticks against a number of the names. I find that the ticks indicated the APC workers to whom Mr McDermott had spoken or given documents.

56    Both Mr McDermott and Mr Christopher then walked down the stairs to the ground floor. Mr McDermott said words to the effect of “there’s another APC worker” while pointing to a worker a short distance away. He spoke to that worker, giving him a document.

57    Mr McDermott and Mr Christopher left the site at about 9:30 am (about 45 minutes after their entry). They did so without completing the “time out” entry in the visitors’ book. Mr Whyte made that entry.

58    Mr McDermott’s contravention of s 500 arose from his entry onto the site without having provided notice of entry as required by s 487 and despite the challenge by Mr Whyte, his remaining on site for approximately 45 minutes, and his holding of discussions with employees while they were working and at places on the site which had not been agreed with Watpac.

59    Mr Christopher admitted that he had contravened s 500 by being knowingly involved in Mr McDermott’s contravention (FW Act, s 550). His role was not passive, as the statements which he made to Mr Whyte indicate. The CFMEU admitted that it had twice contravened s 500 by reason of the conduct of Mr McDermott and Mr Christopher.

Action SAD 305/2014 – Minda Homes site: 28 April 2014

60    In April 2014, Badge Constructions Pty Ltd (Badge) was the head contractor on a construction project known as the Minda Homes Master Plans Stage One at Repton Road, Somerton Park, a suburb of Adelaide.

61    The first respondent (Mr Bolton) and the second respondent (Mr Huddy) attended the site at about 12:40 pm on 28 April 2014. They then had a conversation with an employee of Badge, Mr Harmer, through the site gate (which was locked). A conversation to the following effect occurred:

Mr Harmer:        Do you have a notice?

Mr Bolton:        We don’t need a notice.

Mr Harmer told Mr Bolton and Mr Huddy that they were not permitted onto the site without an entry notice and declined to open the gate.

62    Shortly afterwards, Badge employees opened the gate to allow a truck to enter the site. Mr Bolton and Mr Huddy took advantage of this opportunity and entered the site themselves. They then held, or attempted to hold, discussions with employees in the lunch sheds on the site. While Mr Bolton and Mr Huddy were there, Badge’s Senior Site Manager, Mr Melville, directed them to leave but they refused to do so. Mr Melville also requested Mr Bolton and Mr Huddy to produce an entry notice, but they ignored his request.

63    Mr Bolton and Mr Huddy left at about 1.30 pm, having been on the site for about 30 minutes.

64    Mr Bolton and Mr Huddy admit that they were seeking at the time to exercise rights in accordance with s 484 of the FW Act and that they had contravened s 500. Their improper conduct comprised their entry onto the site without permission having not provided notices of entry as required by s 487, their ignoring of Mr Melville’s request that they produce entry notices and his direction that they leave the site, and their holding of discussions with workers in places which had not been agreed with Badge.

65    The CFMEU acknowledges that, by reason of the conduct of Mr Bolton and Mr Huddy, it is to be taken to have twice contravened s 500.

Action SAD 306/2014 – Quest South Project: 5 May 2014

66    On 5 May 2014, G Colangelo Development Company Pty Ltd (Colangelo Development) was the head contractor on a construction project, known as the Quest South Project, at 379 King William Street, Adelaide. Mr Roberto Colangelo was employed by Colangelo Development as Project Manager at the site. His brother David Colangelo was employed by Colangelo Development as Construction Manager.

67    The Director relied upon the admissions of the respondents in their amended defence and on the affidavit of Roberto Colangelo. On the basis of those documents, I make the following findings of fact.

68    Mr McDermott, Mr Stephenson and Mr Christopher attended the Quest South site at about 9:30 am on 5 May 2014. They were accompanied by another person. The evidence did not disclose the identity of this person but I am satisfied, having regard to the description of his clothing and the fact that he accompanied Mr McDermott, Mr Stephenson and Mr Christopher, that he too was a CFMEU official. I will refer to this group as “Group One”.

69    Roberto Colangelo met Group One near to, and just inside, the southern laneway entrance gate to the site. The members of the Group asked to enter the site, with each of them saying words to the effect of “we want to come on site”. Roberto Colangelo refused entry, saying words to the effect of “no, you’re not coming on, you don’t have a permit”. Mr Colangelo said this because he knew that none of the officials had provided a notice of entry. At this time, David Colangelo joined his brother and a conversation to the following effect occurred:

David Colangelo:    Can we see your permit?

One of the officials:    No we’re not going to give that.

Roberto Colangelo

& David Colangelo:    You don’t have a notice or permit, you can go.

70    At this time, the Group was standing approximately 3 m from a doorway to the stairs which provided access to the upstairs part of the building under construction. Roberto Colangelo went to that door to close it. As he did so, Mr Christopher pushed him out of the way, using his shoulder and elbow, and started moving through the doorway. Roberto Colangelo responded by pushing Mr Christopher back against the door when he was part way through the doorway. Both men then took hold of the clothing of the other at chest level, holding each other at arms-length. After a few moments, Mr Christopher lifted his arms and said “I’m not touching any more”. Roberto Colangelo released his grip at the same time.

71    A standoff then developed.

72    At about 10 am, Robert Colangelo telephoned Mark Gava, a CFMEU organiser whom he knew. He told Mr Gava to tell the CFMEU officials to leave the site. Mr Gava responded by saying that he would see what he could do. The evidence did not disclose what, if any, action Mr Gava took.

73    At about the same time, Mr McDermott telephoned Roberto Colangelo’s father, Jack Colangelo.

74    The standoff continued. Roberto Colangelo stood beside the doorway preventing access to the stairs to the higher levels of the building and to the workers’ lunchroom. Mr Christopher stood to his left, Mr Stephenson to his right and the unidentified official behind Mr Christopher. This continued for about 20 minutes. The group of CFMEU officials then walked away. However, Mr Stephenson returned almost immediately and a conversation to the following effect occurred:

Mr Stephenson:        Come on Rob, let us on site, let us upstairs.

Roberto Colangelo:    No, not after what has happened, you don’t have a permit.

75    At about this time, Group One moved again towards Roberto Colangelo. He felt intimidated and asked his brother to come and stand behind him.

76    The situation seemed to quieten and a conversation to the following effect occurred:

Mr Stephenson:        Rob, just let us upstairs.

Roberto Colangelo:    You’re not going on, because you don’t have a permit.

Unidentified official:    You have to let me on, I don’t need a permit. Fair Work says you have to let us on site.

Roberto Colangelo:    Show me the law.

77    After a few minutes, the CFMEU officials moved away and Roberto Colangelo closed the stair access door. At about this time, four further CFMEU officials (Group Two) arrived. The fourth respondent, Mr James O’Connor, was a member of Group Two. Mr O’Connor approached Roberto Colangelo and a conversation to the following effect occurred.

Mr O’Connor:    Rob, let them in the lunch shed to talk to the boys and then they’ll be on their way.

Roberto Colangelo:    No, I’ve closed the Alimak, I’m pumping out the pit, I’ll get the boys together and you can talk to them down here [i.e., on the ground floor].

You walked the job a couple of weeks ago – the carpets have been laid so you can’t walk the job.

Unidentified

CFMEU Official:    We don’t do meetings in the basement, we do them in the lunchroom.

Roberto Colangelo:    That’s my compromise.

CFMEU Officials:    OK.

78    The CFMEU officials then asked the trade supervisors to have their workers gather in the ground floor entrance area and approximately 28 did so. The CFMEU officials spoke to these workers about wages and membership. Mr Stephenson spoke about the benefits of union membership, said that he had “some membership forms”, and handed them out to the workers. The CFMEU officials who addressed the workers were Mr McDermott, Mr O’Connor and Mr Stephenson. They did so for about 15 minutes and then left the site.

79    Roberto Colangelo gave the following explanation for allowing the CFMEU officials to meet the workers in the downstairs area:

[30]    I would not ordinarily organise the workers to meet with the CFMEU without having been provided a notice of entry. However, given the events of the morning, the fact that there were then eight CFMEU officials in and around the site and that I felt intimidated by the number of officials present, I thought that the best way to diffuse the situation was to organise them to talk to the men at the bottom of the Site. This was so as to prevent any further access to the building. My concern was that if they were allowed into the Building, they could wander around and it would become more difficult to get them to leave the Site.

80    It is appropriate to infer, and I do, that the Group One officials had requested the attendance of Group Two in order to reinforce their demand to be allowed to enter the site. It is unsurprising that Mr Colangelo felt intimidated in these circumstances, especially given the earlier physical conduct of Mr Christopher.

81    The evidence did not disclose the time at which the CFMEU officials left the Quest South site. It was probably between 10.45-11 am, meaning that Mr McDermott, Mr Stephenson and Mr Christopher were present on the site for approximately 1¼-1½ hours.

82    Mr McDermott and Mr Stephenson admit that they had been exercising, or seeking to exercise, rights in accordance with s 484 of the FW Act and that they had acted in an improper manner in contravention of s 500. They acknowledge that their conduct was improper by reason of their entry onto the site without having provided notice of entry in accordance with s 487 and in the face of the refusal by Roberto Colangelo to permit them entry; their remaining on the site despite Mr Colangelo having expressly asked them to leave; in Mr Stephenson’s case, his witnessing of Mr Christopher’s use of force on Mr Colangelo coupled with his failure to intervene and then subsequently remaining on the site while Mr Colangelo continued to refuse them entry; in both cases, their remaining on the site when Group Two arrived with the common purpose of gaining access to the building; and, subsequently, their holding discussions with employees on the site.

83    Mr Christopher admits that he was involved in each of the contraventions of Mr McDermott and Mr Stephenson, within the meaning s 550 of the FW Act, and therefore liable as an accessory in respect of each contravention. Mr Christopher admits that his involvement included his entry on the site with Mr McDermott and Mr Stephenson and for the same purpose as Mr McDermott and Mr Stephenson, his use of force, his association with Group Two which had the common purpose of gaining access to the building, and his omission to take action disassociating himself from the conduct of the other CFMEU officials.

84    The CFMEU acknowledges that it is to be taken as having contravened s 500 by each of the contraventions of Mr McDermott, Mr Stephenson and Mr Christopher.

85    Originally, the Director alleged two contraventions of s 348 of the FW Act had occurred at the Quest South Project by reason of the events on 5 May 2014. However, at the hearing he discontinued the first allegation.

86    The Director’s second allegation of a contravention of s 348 concerned Mr McDermott, Mr Stephenson and Mr Christopher but, at the hearing, the Director discontinued this allegation insofar as it concerned Mr McDermott. The allegation which the Director pursued was that Mr Stephenson and Mr Christopher had contravened s 348 by taking action against Roberto Colangelo with intent to coerce him or Colangelo Development to comply with Mr O’Connor’s request that the CFMEU officials be allowed into the lunch shed and to talk to the workers on the site. The coercive conduct was said to arise from a combination of circumstances at the Quest South Project. These were that Mr Christopher had manhandled Roberto Colangelo; that Mr Stephenson was aware that Mr Christopher had done so; that not only had Mr Stephenson not said or done anything to indicate that he did not support Mr Christopher’s conduct, he had, after the manhandling incident and despite further refusals by Mr Colangelo, continued to press Mr Colangelo to be allowed into the building; and had formed part of the group of eight CFMEU officials whose very presence involved a pressing of Mr Colangelo to be allowed into the building. The allegation in respect of Mr Christopher was the same only that the Director relied upon his manhandling conduct itself.

87    Mr Stephenson and Mr Christopher admit that they contravened s 348 in the way alleged. The CFMEU admits that, by reason of the conduct of Mr Stephenson and Mr Christopher and the operation of s 793 of the FW Act, it twice contravened s 348.

Matters common to the imposition of penalty in all Actions

88    The Director did not submit that any of the building contractors at the five sites had suffered any quantifiable loss as a result of the admitted contraventions. It is appropriate to take into account, however, that senior personnel at each site were distracted from the performance of their ordinary duties by reason of the unauthorised entries. At the same time, I accept that distractions of these kinds are likely to have occurred in any event had the individual respondents given the requisite notice of their entries.

89    It is also appropriate to take into account that the employees to whom the officials spoke at each site were distracted, at least for a short time, from the performance of their normal work. With the exception of the time at the Quest South Project, that distraction does not seem to have lasted for more than a few minutes.

90    All of the respondents, including the CFMEU, are to be given credit for their admission of their contraventions. I accept that this is indicative of a willingness to facilitate the course of justice. However, the credit which can be granted on this account in all actions other than SAD 305/2014 is limited, first, because the acknowledgments were made only on the morning of the day that the trial of the Director’s allegations was to commence and after the Director had prepared the matter fully for trial; and, secondly, because there is no indication that the acknowledgments reflect any contrition or regret by the respondents for the contraventions.

91    None of the respondents has made any expression of regret or contrition and none provided evidence of any action taken since May 2014 with a view to avoiding any further contraventions of s 500. In particular, the CFMEU did not provide evidence that it had given instructions or provided training with a view to avoiding further contraventions.

92    None of the respondents provided evidence about his or its financial circumstances. In particular, the respondents did not adduce any evidence indicating that they had an incapacity to pay the penalties which the Court may impose.

93    In each case, the conduct of the individual respondents involved direct disregard of the rights of the occupiers of the site and an affront to the authority of their senior personnel. The individual respondents were simply dismissive of the objections made by the senior management at each site. Account should be taken of this attitude in the penalties which are imposed.

94    The Director submitted that the Court should order the penalties imposed be paid to the Commonwealth. In the oral submissions, he also submitted that the Court should make an order similar to that made by Flick J in DFWBII v Bragdon (No 2) [2015] FCA 998 to the effect that the penalties imposed on the individual respondents be paid by them personally and not be reimbursed, whether directly or indirectly, by the CFMEU. However, at a later hearing, the Director indicated that he no longer sought the second order. It is accordingly unnecessary to consider the respondents’ submissions to the effect that an order of the kind originally proposed is not authorised by the FW Act and that, even if it is, should not be made in the present cases.

95    The originating applications in some, but not all, cases indicated that the Director also sought injunctive relief. Counsel for the Director confirmed at the penalty hearing that relief of that kind was no longer sought.

The declarations

96    In all cases, other than Action SAD 305/2014 concerning the conduct of Mr Bolton, Mr Huddy and the CFMEU at the Minda Homes site, the declarations were supported by the Director’s evidence. In Action SAD 305/2014, the Director relied only on the admissions in the filed defence of the three respondents.

97    In that circumstance, counsel for the Director drew attention, quite properly, to the caution courts exercise before making declarations by consent when it has not received evidence about the subject matter of the declarations. See, for example, Bank of Kuwait and the Middle East v Ship MV “Mawashi Al Gasseem” (No 2) [2007] FCA 815, (2007) 240 ALR 120 at [10]-[15]; ACCC v Yellow Page Marketing BV (No 2) [2011] FCA 352, (2011) 195 FCR 1 at [66]-[69]; Fair Work Ombudsman v W.K.O. Pty Ltd [2012] FCA 1129 at [83]; and Director of Consumer Affairs v Nightingale Electrics Pty Ltd [2016] FCA 279.

98    Each of Mr Bolton, Mr Huddy and the CFMEU have been represented throughout by solicitors. It is evident that their admissions were made only after proper consideration. The early admissions by these respondents evidenced a willingness on their part to facilitate the course of justice. Amongst other things, the admissions saved the Director having to attend to proof of his allegations. It would be unfortunate if, despite the willingness of the respondents to facilitate the course of justice in this way, the Court required additional proof of the admitted conduct before making the declarations.

99    In their submissions, the respondents queried in a general way the utility of the declarations sought by the Director but did not submit positively that they should not be made. In particular, the respondents did not submit that the declarations in Action SAD 305/2014 should not be made because the Director had not provided additional proof of the contraventions admitted by Mr Bolton, Mr Huddy and the CFMEU.

100    Exercising the caution indicated by the authorities, I am satisfied that the discretion to grant declarations by s 24 of the Federal Court Act 1976 (Cth) should be exercised in relation to Action SAD 305/2014 despite the absence of evidence. The declarations are in an appropriate form and will serve the purposes I identified in [80]-[82] of the Lend Lease Sites Penalty judgment, which I have incorporated by reference into these reasons.

101    Accordingly, subject to some revision to their form, the declarations sought by the Director in each proceeding are appropriate and will be made.

Mr O’Connor

102    A penalty is to be imposed on Mr O’Connor in Action SAD 302/2014 for his contravention of s 500 at the Adelaide High School site on 31 March 2014.

103    As at 31 March 2014, Mr O’Connor had contravened s 500 on three previous occasions. One of those contraventions occurred on 30 October 2013 at the Convention Centre Redevelopment on North Terrace, Adelaide. I imposed a penalty on Mr O’Connor in respect of that conduct in the Lend Lease Sites Penalty Judgement ([2016] FCA 413) also delivered today.

104    The other two contraventions occurred on 19 and 20 March 2014 at a construction project at 50 Flinders Street in the city of Adelaide. On 19 March 2014, Mr O’Connor’s contravention arose by reason of his having acted in an improper manner while seeking to exercise rights in accordance with Pt 3-4 of the FW Act, in particular, by entering 50 Flinders Street without providing an entry notice. On 20 March 2014, Mr O’Connor contravened s 500 by intentionally hindering and obstructing a site manager. He had become involved in a physical altercation, forcibly pulling the site manager away from an access gate and then entering 50 Flinders Street without having provided an entry notice. This was less than two weeks before Mr O’Connor’s contravention at the Adelaide High School project. In DFWBII v Cartledge [2014] FCA 1047, Mansfield J made declarations on 2 October 2014 with respect to those contraventions and imposed pecuniary penalties of $1,500 and $4,500.

105    I take into account that the Court had not dealt with Mr O’Connor’s contraventions on 30 October 2013 and 19 and 20 March 2014 by the time of the subject contravention. On the other hand, Mr O’Connor had had the opportunity between 19 and 20 March 2014 and 31 March 2014 to reflect on the wrongfulness of his conduct, and yet he chose to contravene s 500 again, in a flagrant way, on 31 March.

106    Of particular significance for present purposes is that on 25 March 2014 this Court issued an interim injunction restraining a number of persons, including Mr O’Connor, from attending the Hansen Yuncken Pty Ltd project at 50 Flinders Street and at the site at which the new Royal Adelaide Hospital is being constructed, unless lawfully exercising, or seeking to exercise, rights in accordance in Pt 3-4 of the FW Act: DFWBII v Cartledge (No 2) [2015] FCA 851. That injunction was issued only six days before Mr O’Connor committed the contravention at the Adelaide High School site. Accordingly, Mr O’Connor had been put on notice of the importance of complying with the requirements of the FW Act in relation to rights of entry. Although Mr O’Connor’s conduct on 31 March 2014 did not contravene the injunction, its existence adds to the culpability of his conduct as it indicates an attitude of deliberate defiance of the law and disregard of the rights of a builder such as Sarah Constructions. That attitude is evident in Mr O’Connor’s failure to take heed of Mr Pongrac’s repeated statements that he was refusing him entry to the site. By his conduct he asserted an entitlement which he knew he did not have. The same can be said of the conduct of the other individual respondents to which this judgment relates.

107    As at 31 March 2014, Mr O’Connor was an employed organiser within the CFMEU.

108    As noted, Mr O’Connor has not made any expression of regret or contrition. I add in this respect that I do not regard the apologies which Mr O’Connor made to Mr Pongrac while on the site as being relevant statements of regret or contrition. Mr O’Connor was doing no more than to apologise to Mr Pongrac for the personal inconvenience which his conduct would cause. To my mind, Mr O’Connor’s persistence in entering the site even though he was aware that it would cause personal inconvenience to Mr Pongrac only adds to the culpability of his conduct.

109    I keep in mind that Mr O’Connor was on the construction area of the Adelaide High School site for a period of about 20 minutes, that is, not for a lengthy period.

110    After taking account of Mr O’Connor’s record and his admission of his contraventions, I consider that a penalty of $2,500 is appropriate in his case.

Mr McDermott

111    The penalties are to be imposed on Mr McDermott for his contraventions of s 500 at the Art Apartments Project on 5 May 2014 (Action SAD 303/2014); at the Quest South Project on the same day (Action SAD 306/2014); and at the Ibis Hotel site on 6 May 2014 (Action SAD 304/2014).

112    Mr McDermott contravened industrial legislation on several occasions before 5 May 2014. On 5 March 2014 (two months before the subject contraventions), the Court declared that Mr McDermott had contravened s 355 of the FW Act on 22 June 2012 by engaging in conduct with the intention of coercing a company to accede to a demand to reinstate an employee, and imposed a pecuniary penalty of $1,320: DFWBII v CFMEU [2014] FCA 160.

113    On 23 December 2014, the Court imposed a penalty of $4,000 on Mr McDermott for a contravention of s 500 of the FW Act on 1 May 2014 at the Ibis Hotel site at 122 Grenfell Street, Adelaide: DFWBII v Stephenson [2014] FCA 1432. This contravention occurred only five days before Mr McDermott contravened s 500 again on the same site and only four days before the two contraventions on 5 May 2014.

114    In the Lend Lease Sites Penalty judgment also delivered today ([2016] FCA 413), I imposed penalties on Mr McDermott for contraventions of s 500 committed on 30 and 31 October and 12 November 2013 and for a contravention of s 499 of the FW Act committed on 13 November 2013.

115    The contraventions for which the penalties were not imposed until after 5 May do not have the same significance as that for which the penalty was imposed beforehand. Nevertheless, they indicate that Mr McDermott cannot be regarded as a first time contravenor, and that lenience cannot be extended to him on the basis that the subject contraventions were isolated occurrences.

116    Mr McDermott’s conduct at the Art Apartments and the Quest South sites in particular, was a flagrant disregard of the requirements of Pt 3-4, and of the interests of the occupiers of those sites. It evidenced a complete indifference to the rights of the occupiers and the pursuit by Mr McDermott of “entitlements” which he knew he did not have. Mr McDermott’s dismissive (if not contemptuous) attitude at the Art Apartments site is evident in his response to Mr Moschou’s request to see his permits, namely, “I don’t have any. I’m going to walk on site. What are you going to do about it?” and his subsequent refusal to leave the site as requested. All these matters add to the culpability of his conduct.

117    Mr McDermott’s culpability is further increased by the fact that he holds (and held) a senior position in the CFMEU in South Australia, namely, Assistant Secretary of the Construction and General Division. As such, he was one of the CFMEU’s most senior officials in South Australia.

118    The evidence did not establish that Mr McDermott had witnessed Mr Christopher’s manhandling of Roberto Colangelo, and the Director did not press for a finding to that effect. I do not take into account against him that he failed to intervene at the time of Mr Christopher’s conduct or any failure on his part to disassociate himself from it.

119    It is to Mr McDermott’s credit that he has admitted his contraventions. However, as with Mr O’Connor, his admissions were belated, being made only immediately before the trials of the Director’s allegations were to commence. I accept that they do reflect some willingness to facilitate the course of justice but, at the same time, note that Mr McDermott has made no expression of contrition or regret, has made no apology to the project or site managers at any of the three sites, and has not indicated any determination to ensure that he does not infringe s 500 in the future.

120    There was no suggestion that Mr McDermott’s conduct at the three sites on 5 and 6 May 2014 should be regarded as a single course of conduct and, in any event, I do not consider that the evidence would support that characterisation. I also observe that Mr McDermott had almost 24 hours after his contraventions on 5 May 2014 to reflect on that conduct and yet he chose to engage in further contravening conduct of a like kind at the Ibis Hotel site on 6 May 2014. This evidences a persistence in unlawful conduct. That persistence is underlined by the circumstance that Mr McDermott, and others, had been challenged on 1 May 2014 at the Ibis Hotel site in relation to the entrance on that site without compliance with the requirements of Pt 3-4.

121    In my opinion, penalties of $3,750 are appropriate in respect of each of Mr McDermott’s contraventions of s 500. His conduct constituting the contravention at the Ibis Hotel site may not have been as egregious as that involved in the first two contraventions but it did occur after those contraventions, and after Mr McDermott had had the opportunity to reflect on the wrongfulness of his conduct.

122    The aggregate of these penalties is $10,500. I do not consider that the totality principle should be invoked so as to moderate those penalties. The Court has not been provided with any evidence which would indicate that penalties of this order would have a crushing effect on Mr McDermott. I do not consider that the penalties are disproportionate to Mr McDermott’s overall culpability.

Mr Stephenson

123    Penalties are to be imposed on Mr Stephenson in respect of his contraventions of s 500 at the Art Apartments site on 5 May 2014 (Action SAD 303/2014) and his contraventions of s 348 and s 500 at the Quest South site later on the same day (Action SAD 306/2014).

124    At the time of the contraventions, Mr Stephenson was an employed organiser of the CFMEU. I take into account, in his favour, that at the time of the contraventions he was in the company of Mr McDermott and Mr Christopher, each of whom held senior positions within the CFMEU and may be taken, to an extent, to have been under their influence.

125    Nevertheless, Mr Stephenson’s contraventions are of a serious kind. I do not accept the submission of counsel for the respondents that they should be regarded as being towards the lower end of the scale. On the contrary, each of his contraventions of s 500 appear to have been deliberate and premeditated. The contravention of s 348 at the Quest South Project may stand differently, because Mr Stephenson may have committed that contravention without much prior thought.

126    As at 5 May 2014, Mr Stephenson had contravened s 500 on five previous occasions: 30 October, 11 November and 12 November 2013, 31 March and 1 May 2014, although as at 5 May 2014 he had not been dealt with by a Court for any of those contraventions. The challenges made to Mr Stephenson on the occasions of his previous contraventions should have brought home to him the unlawfulness of his conduct and yet he persisted on 5 and 6 May 2014 in further contraventions. That adds to his culpability, and indicates that there is little scope for leniency in the present case.

127    Mr Stephenson has not worked for the CFMEU or any other union since July 2014 and no longer holds a permit under Pt 3-4. Counsel submitted, and I accept, that this reduces the need for the penalties imposed in his case to reflect personal deterrence.

128    There are serious aspects to Mr Stephenson’s contravention of s 348 at the Quest South site but it is far from being the most serious of its kind. Mr Stephenson’s personal conduct involved words of apparent persuasion, namely, a request to Mr Roberto Colangelo for permission to be allowed “upstairs”. However, the context in which Mr Stephenson spoke those words adds to their gravity. They came after Group One had been on the Quest South site for a considerable period, after Mr Christopher’s intimidation of Mr Colangelo (which Mr Stephenson witnessed) and after the prolonged standoff. In addition, Mr Stephenson’s attempted coercion of Mr Colangelo occurred at a time when it must have been obvious to him, by reason of the circumstances, that Mr Colangelo felt some intimidation as a result of the events which had occurred.

129    It was not suggested that any of the contraventions of Mr Stephenson should be regarded as having occurred during a single course of conduct and, in any event, I do not consider that they can reasonably be characterised in that way.

130    After allowing for the mitigatory matters which I mentioned, I consider that penalties of $2,500 are appropriate in respect of each of Mr Stephenson’s contraventions of s 500, and a penalty of $2,000 in respect of his contravention of s 348.

131    I do not moderate these penalties on account of the totality principle. Mr Stephenson did not present evidence indicating that penalties of this order would have a crushing effect on him and I do not consider that they can be regarded as disproportionate to the overall culpability involved.

Mr Christopher

132    Penalties are to be imposed on Mr Christopher in respect of his contraventions of s 500 on 5 May 2014 at the Art Apartments Project (Action SAD 303/2014), at the Quest South site on the same day (Action SAD 306/2014), and at the Ibis Hotel site on the following day (Action SAD 304/2014), and for his contravention of s 348 at the Quest South site on 5 May 2014 by engaging in the coercive conduct directed to Roberto Colangelo (Action SAD 306/2014). He is taken to have contravened s 500 on each occasion by reason of his involvement as an accessory: s 550 of the FW Act.

133    Most of the circumstances of these contraventions have already been canvassed in relation to Mr McDermott and Mr Stephenson, and it is not necessary to repeat them.

134    As at 5 and 6 May 2014, Mr Christopher did not himself hold an entry permit issued pursuant to Pt 3-4 of the FW Act. His position within the CFMEU at the time was that of Vice-President in the Construction and General Division of the Victorian Branch. I have previously described that as a senior position. The culpability of Mr Christopher’s contraventions is increased by the circumstance that he engaged in the unlawful conduct at a time when he held such a senior position.

135    The evidence did not disclose the reason for Mr Christopher being in Adelaide on 5 and 6 May 2014.

136    Mr Christopher did not adopt a passive role at any of the three sites. At the Art Apartments site, he and Mr Stephenson spoke to workers about their pay and conditions. Mr Christopher asserted wrongly to Mr Whyte at the Ibis Hotel site that he and Mr McDermott were not exercising any right of entry, declined Mr Whyte’s request to produce evidence of his identity and spoke dismissively to him. He manhandled Roberto Colangelo at the Quest South site. Some indication of Mr Christopher’s attitude to compliance with the law is indicated by his statement to Mr Whyte, “I don’t believe in those permits and very soon neither will anyone else”.

137    Mr Christopher had been found to have contravened industrial legislation on two previous occasions. On 3 March 2011, this Court imposed penalties of $2,000 and $2,500 respectively on Mr Christopher in respect of coercive conduct in contravention of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (the BCII Act) on 14 August and 28 August 2008: Wotherspoon v CFMEU (No 2) [2011] FCA 158. On 20 July 2011, this Court imposed a penalty of $2,000 of Mr Christopher for coercive conduct in contravention of s 43 of the BCII Act on 12 December 2008; a penalty of $5,000 in respect of coercive conduct in contravention of s 43 of the BCII Act which had occurred on 12 and 13 February 2009; and a penalty of $5,000 in respect of coercive conduct in contravention of s 43 of the BCII Act on 18 February to 2 March 2009: Gregor v CFMEU [2011] FCA 808.

138    Counsel for the Director also drew attention to the decisions in DFWBII v CFMEU [2013] FMCA 160 and Australian Building and Construction Commissioner v Christopher [2012] FMCA 589 in which penalties had been imposed on the CFMEU in respect of conduct by Mr Christopher which had contravened s 348 of the FW Act and s 38 of the BCII Act respectively.

139    Although Mr Christopher had not previously been found to have contravened s 500, I consider that his previous contraventions and conduct is relevant to the assessment of the present penalties. Mr Christopher does not have clean record and cannot not be treated as though he is a first time contravenor. I also consider it appropriate to take into account that, by virtue of his senior position within the CFMEU, Mr Christopher must have been aware of the numerous occasions before May 2014 in which penalties had been imposed on the CFMEU for contraventions of the FW Act and its predecessors and, in particular, of s 500.

140    Mr Christopher’s contravention of s 500 at the Quest South site is particularly serious. He chose to manhandle Mr Roberto Colangelo and to engage in a physical confrontation. This was in complete disregard of the rights of Colangelo Developments. Having engaged in that conduct, Mr Christopher continued to be involved in the contraventions by Mr McDermott and Mr Stephenson of s 500.

141    Even after having given him credit for his acknowledgement of his contraventions, I consider that severe penalties are appropriate in his case. They cannot be regarded as incidents in a single course of conduct.

142    In respect of Mr Christopher’s conduct at the Quest South site, I impose a penalty of $4,000. In respect of the other two contraventions of s 500 as an accessory on 5 and 6 May 2014, I impose penalties of $3,000. In respect of the contravention of s 348 at the Quest South site on 5 May 2014, I impose a penalty of $2,500. I add that, in reaching the figure of $2,500, I have excluded from consideration Mr Christopher’s conduct in manhandling Mr Roberto Colangelo because account has already been taken of that in the s 500 penalty. However, Mr Christopher’s involvement in the coercion of Mr Colangelo has to be assessed in the context that it occurred very soon after the manhandling incident.

143    I do not consider that any adjustment of these penalties is required having regard to the totality principle.

Mr Bolton

144    A penalty is to be imposed on Mr Bolton in respect of his contravention of s 500 at the Minda Homes Project site on 28 April 2014 (Action SAD 305/2014).

145    Penalties have previously been imposed on Mr Bolton for contraventions of industrial legislation. On 23 December 2014, the Court imposed penalties of $2,000 and $1,800 on Mr Bolton for contraventions of s 500 of the FW Act at the Minda Homes site on 7 April 2014 and 31 March 2014 respectively: DFWBII v Stephenson. Further, on 2 October 2014, this Court imposed a penalty of $4,000 on Mr Bolton for his contravention of s 500 of the FW Act at a construction site at 50 Flinders Street, Adelaide on 20 March 2014: DFWBII v Cartledge. Those penalties were of course imposed after the subject contravention.

146    This history indicates the importance of personal deterrence in Mr Bolton’s case.

147    I consider that a penalty of $2,000 is appropriate in Mr Bolton’s case. Had it not been for Mr Bolton’s early admission of his contravention, that penalty would have been much higher.

Mr Huddy

148    A penalty is to be imposed on Mr Huddy in respect of his contravention of s 500 with Mr Bolton at the Minda Homes site on 28 April 2014 (Action SAD 305/2014).

149    Mr Huddy had contravened s 500 on one previous occasion. On 23 December 2014, the Court imposed a penalty of $800 on Mr Huddy in respect of his contravention of s 500 at the Minda Homes Project on 31 March 2014: DFWBII v Stephenson.

150    Mr Huddy has resigned as an organiser of the CFMEU. He no longer holds an entry permit. The respondents submitted that in that circumstance, personal deterrence is less important in his case and I accept that that is so.

151    In my opinion, a penalty of $1,500 is appropriate in Mr Huddy’s case. Had it not been for his early acknowledgement of his contravention and the circumstance that he has ceased working as an organiser, that penalty would have been much higher.

The CFMEU

152    Penalties are to be imposed on the CFMEU in respect of each of the contraventions constituted by the conduct of the individual respondents in each action.

153    The dismal record of contraventions of industrial legislation by the CFMEU to which I referred in the Lend Lease Sites Penalty Judgement had deteriorated still further by the time of the subject contraventions between late March and early May 2014.

154    In the period between 1 January 1999 and 31 March 2014, the CFMEU itself or through it officials had been dealt with for 17 contraventions of s 500 or its counterparts in earlier legislation, and for 194 contraventions of s 348 of the FW Act or other provisions proscribing forms of coercive conduct.

155    All in all, the CFMEU itself or through its officials had in the period between 1 January 1999 and 31 March 2014 been dealt with by courts on 42 separate occasions for some 211 contraventions of industrial legislation. This is a regrettable record of indifference to, or defiance of, the law. Substantial penalties have been imposed on the CFMEU in the past without deterring it from unlawful conduct. That suggests that even more severe penalties should be imposed now.

156    Each of the contraventions of s 500 for which penalties are to be imposed appear to have been deliberate and premeditated. The involvement of Mr Christopher at the Art Apartments, Quest South and Ibis Hotel sites adds to that impression as it does not appear to have occurred by chance. I infer that the CFMEU made a deliberate decision or decisions to send two or more of its officials to each site as part of its premeditated strategy. Presumably, it considered that the effect it sought to achieve would be enhanced by the presence of several officials on each site. Accordingly, although it may be appropriate to conclude that there were five separate course of conduct, it is inappropriate to moderate their penalties on that account. The involvement of so many of its officials was part of the means by which the CFMEU sought to achieve its ends.

157    I note again, that the involvement of Mr McDermott and Mr Christopher as senior CFMEU officials is an aggravating circumstance. Account must be taken of that in penalties to be imposed.

158    I impose penalties on the CFMEU for its contraventions of s 500 as follows:

159    In respect of the contraventions of s 348 of the FW Act at the Quest South site on 5 May 2014, I impose a penalty of $20,000 in respect of the contravention constituted by Mr Stephenson’s conduct and a penalty of $24,000 in respect of the contravention constituted by Mr Christopher’s conduct.

Conclusion

160    In summary, for the reasons given above, I will make the declarations sought by the Director, subject only to some modifications of form.

161    I impose the following penalties:

162    Each of the penalties is to be paid to the Commonwealth.

Associate:

Dated:    22 April 2016

SCHEDULE OF PARTIES