FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 3) [2017] FCA 10

File number:

SAD 248 of 2014

Judge:

BESANKO J

Date of judgment:

19 January 2017

Catchwords:

INDUSTRIAL LAW – penalty hearing – where respondents contravened s 343(1) of Fair Work Act 2009 (Cth) – where actions of second and third respondents are taken to be actions of the first respondent by reason of s 343 of Fair Work Act 2009 (Cth) – relevant considerations in determining appropriate declarations and penalties – whether conduct constitutes one or two contraventions by the first respondent – whether multiple contraventions constituted a single course of conduct – relevance of single course of conduct to penalty – consideration of totality principle – whether the Court has a power to prohibit a union from indemnifying its officials.

Legislation:

Building and Construction Industry Improvement Act 2005 (Cth) s 38

Fair Work Act 2009 (Cth) ss 343, 355, 363, 417, 499, 500, 546 550, 557, 793

Cases cited:

Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2016] FCAFC 184

Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1

Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171; (2009) 262 ALR 417

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 616

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 607

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Yarra’s Edge Case) [2016] FCA 772

Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338

Fair Work Ombudsman v Al Hilfi [2016] FCA 193

Mill v The Queen (1988) 166 CLR 59

Date of hearing:

26 July 2016

Registry:

South Australia

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

49

Counsel for the Applicant:

Mr M Roder SC with Ms K Stewart

Solicitor for the Applicant:

Piper Alderman

Counsel for the Respondents:

Mr M Abbott QC with Mr M Ats

Solicitor for the Respondents:

Lieschke & Weatherill Lawyers

ORDERS

SAD 248 of 2014

BETWEEN:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Applicant

AND:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Respondent

AARON CARTLEDGE

Second Respondent

MICHAEL MCDERMOTT

Third Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

19 january 2017

THE COURT DECLARES THAT:

1.    The Second Respondent, Aaron Cartledge, contravened s 343(1) of the Fair Work Act 2009 (Cth) (FW Act) on 22 November 2013 by verbally threatening to organise industrial action against the joint venture partners Hansen Yuncken Pty Ltd and Leighton Contractors Pty Ltd (HYLC) with the intent to coerce HYLC, through its employees, to not exercise a workplace right within the meaning of s 341(1)(b) of the FW Act, namely the right to initiate a proceeding under the FW Act to enforce a Fair Work Commission Order.

2.    By reason of s 363 of the FW Act, the First Respondent, the Construction Forestry, Mining and Energy Union, is taken to have contravened s 343(1) of the FW Act by the conduct of the Second Respondent constituting the contravention in Declaration 1 hereof.

3.    The Third Respondent, Michael McDermott, contravened s 343(1) of the FW Act on 22 November 2013 by verbally threatening to organise industrial action against HYLC with the intent to coerce HYLC, through is employees, to not exercise a workplace right within the meaning of s 341(1)(b) of the FW Act, namely the right to initiate a proceeding under the FW Act to enforce a Fair Work Commission Order.

4.    By reason of s 363 of the FW Act, the First Respondent, the Construction Forestry, Mining and Energy Union, is taken to have contravened s 343(1) of the FW Act by the conduct of the Third Respondent constituting the contravention in Declaration 3 hereof.

THE COURT ORDERS THAT:

5.    The First Respondent pay a penalty of $25,000 in respect of its contravention of s 343 of the FW Act by reason of s 363 as set out in Declaration 2 hereof.

6.    The First Respondent pay a penalty of $25,000 in respect of its contravention of s 343 of the FW Act by reason of s 363 of the FW Act as set out in Declaration 4 hereof.

7.    The Second Respondent pay a penalty of $3,750 in respect of his contravention of s 343 of the FW Act as set out in Declaration 1 hereof.

8.    The Third Respondent pay a penalty of $3,750 in respect of his contravention of s 343 of the FW Act as set out in Declaration 3 hereof.

9.    Pursuant to s 546(3) of the FW Act, each of the pecuniary penalties 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

BESANKO J:

Introduction

1    The Director of the Fair Work Building Industry Inspectorate (“DFWBII”) (now the Australian Building and Construction Commissioner) brought a proceeding under the Fair Work Act 2009 (Cth) (“FW Act”) against the Construction, Forestry, Mining and Energy Union (“CFMEU”), Mr Aaron Cartledge and Mr Michael McDermott in which it claimed that each of the respondents had contravened s 343(1) of the FW Act on 22 November 2013.

2    At the relevant time, Mr Cartledge was an official and officer of the CFMEU and he held the position of the Branch Secretary of the CFMEU, the Construction and General Division, South Australian Branch. Mr McDermott was also an official and officer of the CFMEU and, in addition, he was an employee. He held the position of Assistant Secretary. Each of Mr Cartledge and Mr McDermott was alleged to have contravened s 343(1) of the FW Act by reason of statements they made at a meeting at the new Royal Adelaide Hospital site on 22 November 2013 at which representatives of the Hansen Yuncken Pty Ltd and Leighton Contractors Pty Ltd joint venture (“HYLC joint venture”), SafeWork SA and the Communications, Electrical and Plumbing Union were present. The DFWBII’s case was that the statements were threats to organise or take action against the HYLC with intent to coerce HYLC not to exercise a workplace right. The DFWBII’s case was that the CFMEU also contravened s 343(1) of the FW Act because, by reason of s 363 of the FW Act, the actions of Mr Cartledge and Mr McDermott are taken to be the actions of the CFMEU.

3    After a trial, I determined that each of the respondents had contravened s 343(1) of the FW Act: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 607.

4    The matter now comes before me for the determination of the declarations which should be made and the fixing of pecuniary penalties. The DFWBII also seeks an order that the CFMEU be restrained from indemnifying Mr Cartledge and Mr McDermott against the pecuniary penalties they are ordered to pay. The power of the Court to make such an order has been the subject of consideration in the authorities. By way of example, I refer to the discussions of the Court’s power to make such an order in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436 at [161]-[202] per Mortimer J; Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (The Yarra’s Edge Case) [2016] FCA 772 (“The Yarra’ Edge Case”). On 21 December 2016, the Full Court of this Court handed down its decision in Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2016] FCAFC 184. The Court decided that this Court did not have the power to make an order prohibiting a union from indemnifying its officials and officers against the pecuniary penalties they are ordered to pay. Since the Full Court’s decision, the DFWBII has indicated that it does not pursue an order that the CFMEU be restrained from indemnifying Mr Cartledge and Mr McDermott against the pecuniary penalties they are ordered to pay.

5    There is no dispute in this case that having regard to the findings set out in my earlier reasons, Mr Cartledge and Mr McDermott are each guilty of one contravention of s 343 of the FW Act. The maximum pecuniary penalty in each case is $10,200. There is a dispute between the parties as to the number of contraventions committed by the CFMEU. The DFWBII contends that the CFMEU has committed two contraventions, one as a result of Mr Cartledge’s statements and a second as a result of Mr McDermott’s statements. The CFMEU contends that it has committed only one contravention of s 343(1) of the FW Act. The maximum pecuniary penalty for a contravention of s 343(1) of the FW Act in the case of the CFMEU is $51,000.

Findings relevant to the Contraventions

6    These reasons should be read with my earlier reasons.

7    The findings I made about the statements made at the meeting by Mr Cartledge and Mr McDermott are as follows (at [108]):

108.    I am satisfied that at the meeting on 22 November 2013 Mr Cartledge said words to the effect that if HYLC took steps to enforce the FWC Order against the respondents to the order, then there would be industrial action on HYLC projects, and that Mr McDermott said there would be industrial action against JV jobs. I am also satisfied that Mr Cartledge said words to the effect that “we will take it national” and that was said in the context of and as part of his threat that if the FWC Order was enforced, there would be industrial action on HYLC jobs. I am satisfied that Mr McDermott said that there would be industrial action against JV jobs if the FWC Order was enforced. I am also satisfied that Mr McDermott said words to the effect that there would be Armageddon and that was said in the context of and part of his threat that if the FWC Order was enforced, then there would be industrial action against JV jobs.

8    As it happened, there was no attempt to enforce the FWC Order and there was no industrial action as had been threatened.

9    The employees left the site on 22 November 2013 before the relevant meeting. The meeting was held to see if the employees absence from the site could be remedied by a process of negotiation.

10    Prior to or at the time of the meeting, Mr Michael Nunweek of the HYLC joint venture contacted some members of the crane crews and that he conveyed to them that a failure to return to the site could be a breach of the FWC Order (at [95]). That was conveyed to a representative of the CFMEU at the meeting and led to the respective statements made by Mr Cartledge and Mr McDermott. In my earlier reasons, I accepted that the statements were prefaced by statements by Mr Cartledge or Mr McDermott that they were at the meeting to try and get things back on track or sort things out. I also accepted that the incident, being the making of the statements, was over very quickly (at [105]).

11    The other matters which are relevant are certain contextual matters which I identified in my earlier reasons. Those matters are set out in the following passage in my earlier reasons (at [102]):

Before outlining my findings with respect to the alleged threats, it is appropriate to repeat some matters of context. There had been a number of safety issues on the site. There had been a serious or reasonably serious incident involving two cranes on the site on 21 November 2013. One consequence of the incident was that a meeting between SWSA officers and member of the crane crews was arranged for 22 November 2013. The workers on the site, or at least the workers on day shift, met in the parklands opposite the site and resolved to leave the site until the safety issues they were concerned about had been resolved. As I understand it, they were to reconsider the position on the following Monday. Mr Cartledge tended to downplay the Union’s role in the meeting and the action taken by the workers on the site. I think the Union was more actively involved than he indicated. As I have said, Mr McDermott and Mr O’Connor were directing workers to the meeting in the parklands. At the same time the Union representatives were at the meeting on 22 November 2013 apparently trying to resolve the issues of concern, having said as much at the meeting. The situation was very volatile. Mr Waters was asked about the mood of the workers on the site on 22 November 2013. He restricted his answers to the 16 respondents to the FWC Order. He said he did not want to think about their reaction to having the FWC Order enforced against them. He said that it “would have been too much for them” and that “it would have been the straw that broke the camel’s back”. In terms of events after the meeting, the crane crews met representatives of SWSA on 23 November 2013. The workers, or at least some of them, returned to the site on 25 November 2013 and the site was back to partial operations on 26 November 2013 and normal operations on 27 November 2013. HYLC did not take any action to enforce the FWC Order and there was no suggestion that the Union took industrial action in relation to or as a result of the events of 21 or 22 November 2013. The evidence suggested that there are no other joint venture projects involving Hansen Yuncken Pty Ltd and Leighton Contractors Pty Limited.

Mr Cartledge and Mr McDermott

12    The declarations sought in relation to Mr Cartledge and Mr McDermott are as follows:

1.    The Second Respondent, Aaron Cartledge, contravened section 343(1) of the Fair Work Act 2009 (Cth) (FW Act) on 22 November 2013 by verbally threatening to organise industrial action against the joint venture partners Hansen Yuncken Pty Ltd and Leighton Contractors Pty Ltd (HYLC) with the intent to coerce HYLC, through its employees, to not exercise a workplace right within the meaning of s341(1)(b) of the FW Act, namely the right to initiate a proceeding under the FW Act to enforce a Fair Work Commission Order.

...

3.    The Third Respondent, Michael McDermott, contravened section 343(1) of the FW Act on 22 November 2013 by verbally threatening to organise industrial action against HYLC with the intent to coerce HYLC, through is employees, to not exercise a workplace right within the meaning of s341(1)(b) of the FW Act, namely the right to initiate a proceeding under the FW Act to enforce a Fair Work Commission Order.

13    Those declarations reflect the findings set out in my earlier reasons and will be made.

14    The matters which are ordinarily considered when fixing a pecuniary penalty under the FW Act are well-established: Fair Work Ombudsman v Al Hilfi [2016] FCA 193 at [20].

15    I have already addressed the nature and extent of the conduct and the circumstances in which it occurred.

16    The DFWBII accepts that he cannot point to any quantifiable economic loss or damage being suffered as a result of the contraventions by Mr Cartledge and Mr McDermott.

17    Neither Mr Cartledge nor Mr McDermott had been found guilty by a Court of any contravention of an industrial law as at 22 November 2013, being the date of the present contraventions. However, both were found guilty after that date of having contravened industrial laws before that date. Mr Cartledge admitted and was subsequently found guilty (by involvement within s 550 of the FW Act) of having contravened s 500 of the FW Act in relation to conduct occurring on 11 November 2013. Mr McDermott admitted and was subsequently found guilty of a contravention of s 355 of the FW Act in relation to conduct occurring on 22 June 2012 and two contraventions of s 500 of the FW Act and a contravention of s 499 of the FW Act in relation to conduct occurring on 30 October 2013, 31 October 2013, 12 November 2013 and 13 November 2013.

18    There is no suggestion that the contraventions by Mr Cartledge and Mr McDermott were accidental and I find that they were deliberate.

19    There is no suggestion of contrition or corrective action by Mr Cartledge or Mr McDermott. Mr Cartledge gave evidence at the trial in which he denied making the threats alleged by the DFWBII and Mr McDermott did not give evidence. Mr Cartledge has since admitted that he contravened s 500 of the FW Act in respect of conduct with took place on 19 and 20 March 2014 for which a pecuniary penalty was imposed. Mr McDermott has since admitted that he contravened s 500 of the FW Act in respect of conduct which took place on 1 May 2014 for which a pecuniary penalty of $4,000 was imposed and that he committed three contraventions of s 500 of the FW Act in respect of conduct which took place on 5 and 6 May 2014 for which pecuniary penalties of $11,250 were imposed.

20    I have already referred to the respective positions Mr Cartledge and Mr McDermott held at the time of the contraventions. Mr Cartledge is one of the most senior officials of the CFMEU in South Australia. Mr Cartledge’s permit expired in March 2015 and he is no longer a permit holder under the FW Act. Mr McDermott is no longer a union official.

21    There is clearly a need for general deterrence and, in light of the lack of contrition and corrective action, for specific deterrence.

22    Taking all of the matters which I have identified into account, I think that it is appropriate to impose a pecuniary penalty of $3,750 on each of Mr Cartledge and Mr McDermott. Those penalties should be paid to the Commonwealth and I will so order (s 546(3) of the FW Act).

CFMEU

One or Two Contraventions

23    There are various ways in which related conduct which might seem to involve more than one contravention is properly characterised as one contravention or where, although there are, for example, two contraventions, the overall nature of the conduct constituting the contraventions by the individuals is such that it is a single course of conduct and that is relevant, perhaps highly relevant, to the assessment of penalty.

24    The first way in terms of logical analysis is where there is undoubtedly more than one contravention by individuals, but because of the nature of the conduct and the terms of the section allegedly contravened, there is for attribution purposes, but one contravention by the party to whom the conduct is attributed. There is some support for this approach in the authorities. However, it is not clear support. The CFMEU relies on this approach in support of its contention that it has committed only one contravention. The DFWBII submits that the authorities upon which the CFMEU relied do not support this approach or if they do, they are wrong and should not be followed.

25    The second way is where the relevant statute empowers the Court to treat two or more contraventions as one contravention because there is one course of conduct by the same person. The relevant statutory provision in this case is s 557(1) of the FW Act. The CFMEU relied on that section in this case. However, that reliance is misplaced. Section 557(1) of the FW Act only applies where the contraventions involve one of the sections identified in s 557(2) of the FW Act, and s 343(1) of the FW Act is not one of those sections.

26    The third way is where there is a single course of conduct and, although the number of contraventions remains the same, the fact that there is a single course of conduct is highly relevant to penalty.

27    The sentencing court may take into account the fact there is an interrelationship between the legal and factual elements of two or more contraventions to ensure the contravener is not punished twice for the same conduct. The Court may take into account that multiple contraventions may properly be seen as a single course of conduct and that may lead the Court to take the following approach:

In the present case, it is appropriate to take the single course of conduct into account by imposing separate fines for the two offences which when aggregated would represent a single penalty appropriate to punish the single course of conduct concerned. Fixing an amount of fines that when taken together represent a single penalty appropriate to punish the one course of continuing conduct begins from the premise that the maximum penalty for all of the contravening conduct that comprises a single transaction, but constitutes two separate offences, is to be treated, in effect, as $110,000 for the Union and $22,000 for Mr Mates: cf Mornington at [18] (per Gyles J) and at [47]-[49] (per Stone and Buchanan JJ).

(Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171; (2009) 262 ALR 417 at [31]). This approach is closely allied to the totality principle and, in particular, that aspect of the principle which requires consideration to be given to proper proportionality (Mill v The Queen (1988) 166 CLR 59 at 62-63; Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 at [61]).

28    However, the third approach is not applied as a matter of course and a sentencing judge is not obliged to take the approach even if the offences are properly characterised as arising from one transaction or a single course of conduct (Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1 at [42] per Middleton and Gordon JJ). There was very little argument in this case about this approach.

29    The fourth way in which the fact that multiple contraventions arose from a single course of conduct may be taken into account is in the application of the totality principle. The DFWBII did not suggest that this would be inappropriate in this case.

30    I return to the arguments concerning the first approach.

31    I accept that the conduct involving the contraventions by Mr Cartledge and Mr McDermott occurred at about the same time, was over very quickly, was the result of the same matter (i.e., Mr Nunweek contacting some members of the crane crews) and that the threats were to similar effect. The CFMEU relies on two decisions of the Court, being Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338 (“Robinson”) and The Yarra’s Edge Case.

32    In Robinson, two officials of the CFMEU organised and encouraged employees of a company to refuse to attend work. They were each found to have contravened s 417(1) of the FW Act. Their conduct was attributed to the CFMEU by virtue of s 793 of the FW Act. An issue arose as to whether the CFMEU had committed one or two contraventions. Unlike this case, the course of conduct provision in the FW Act (i.e., s 557(1)) applied to contraventions of s 417(1) of the FW Act.

33    Charlesworth J noted that the attribution provision which was relevant in the case before her, namely, s 793 of the FW Act did not in express terms attribute the contraventions themselves of the officers to the body corporate, but rather the conduct of the officers (at [48]). I note that the attribution section in this case, namely, s 363(1) of the FW Act attributes the action of the officers or agents to the industrial association. Charlesworth J said that there was one contravention by the CFMEU because there was one instance of industrial action, albeit through the conduct of two human actors, and she placed emphasis on the meaning she gave to the word “organise” in s 417(1) of the FW Act. Her Honour said (at [53]):

In reaching my conclusion that the CFMEU committed only one contravention, I have given the word “organise” in s 417 of the FW Act a meaning that encompasses the concept of “marshalling” or “rallying”, which may inherently involve a number of discrete acts directed at achieving cohesiveness in a result (in this case, a single episode of industrial action). The CFMEU, as a body corporate, organised one instance of industrial action, albeit through the conduct of two human actors.

34    Her Honour said that, in the alternative, the course of conduct provision (s 557(1) of the FW Act) applied because, among other things, the two stop work meetings coincided in time and purpose and were geographically proximate, and therefore, there is taken to have been a single contravention (at [56]).

35    In The Yarras Edge Case, Jessup J was dealing with contraventions of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (“BCII Act”) and his Honour held that, although there were five organisers who had each contravened the Act, the CFMEU in that case had contravened s 38 of the BCII Act once (at [19]). His Honour took a similar approach to that taken by Charlesworth J in Robinson.

36    The DFWBII submitted that the proper approach was that each contravention by a union official was a contravention by the union by reason of the attribution provisions in the FW Act, whether it be s 363 or s 793. That was the approach taken by White J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1293 (at [23]-[24], [106], [115]-[116]) and Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 (at [7]-[14], [48]-[58], [198]) and Siopis J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 616 (at [33]). I note that as far as I can see, the argument now put by the CFMEU does not appear to have been put in either of those cases.

37    There were two threats in this case, one by Mr Cartledge and the other by Mr McDermott. No doubt they were closely related, as I have indicated, but they remain two threats. I accept that s 363(1) of the FW Act does not in terms attribute the contraventions to the CFMEU and that it is the actions of Mr Cartledge and Mr McDermott which are attributed to the CFMEU. Nevertheless, those actions involved two threats. Once that conclusion is reached, it is not clear to me by what process of reasoning or principle a court would be entitled to say that for attribution purposes there was one contravention rather than two, or by reference to what principle a court would be able to distinguish between cases involving one contravention as distinct from two contraventions. It might be different if the words of the provision contravened made it clear that there could be only one contravention. Otherwise, in my opinion, the course of conduct or single course of conduct considerations are reflected in one of the other three approaches where applicable. I would also note it may be that the presence of s 557 of the FW Act and the limitations on its scope in s 557(2) of the FW Act bears upon the problem in the case of civil remedy provisions not referred to in s 557(2) of the FW Act. I do not think the first approach can be taken in the case of s 343(1) of the FW Act.

38    As I have said, very little was said by the parties about the third approach. Again, nothing was said by the parties about whether s 557 of the FW Act, albeit dealing with the number of contraventions, bore upon the application of the third approach. In the circumstances, I will say nothing more about the third approach.

39    I hold that there were two contraventions by the CFMEU. I will take the matters identified in paragraph 31 above into account when considering the totality principle.

Other Matters

40    The DFWBII seeks the following declarations against the CFMEU:

2.    By reason of section 363 of the FW Act, the First Respondent, the Construction Forestry, Mining and Energy Union, is taken to have contravened section 343(1) of the FW Act by the conduct of the Second Respondent constituting the contravention in Declaration 1 hereof.

4.    By reason of section 363 of the FW Act, the First Respondent, the Construction Forestry, Mining and Energy Union, is taken to have contravened section 343(1) of the FW Act by the conduct of the Third Respondent constituting the contravention in Declaration 3 hereof.

41    In light of the findings set out in my earlier reasons and the approach identified above, those declarations will be made.

42    I have already addressed the nature and extent of the conduct, the circumstances in which it occurred, the loss and damage caused by the conduct and whether the conduct was deliberate.

43    The CFMEU is a large, prominent and influential national union and there is no evidence of incapacity to pay.

44    There is no evidence of contrition, corrective action or cooperation by the CFMEU.

45    The DFWBII put before the Court a table of 67 pages which he described as containing details of prior penalties and declarations under industrial laws against Building Industry Associations and other participants. The table lists 114 previous decisions involving contraventions of industrial legislation between December 2000 and May 2016. In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413, Justice White described a similar table which had been provided to him by the DFWBII and the information in that table showed that prior to November 2013, the CFMEU and/or its officials were dealt with by courts on 25 occasions and since November 2013 on 17 occasions for contraventions involving coercive conduct. Although there appear to be some relatively minor differences in the table provided to me, they both show that the CFMEU has a significant record of non-compliance with the provisions of industrial legislation and, in particular, those provisions which penalise coercive conduct in an industrial context. The CFMEU’s poor record is a significant consideration in fixing the pecuniary penalties in this case.

46    General deterrence is clearly a relevant consideration and, in light of the CFMEU’s poor record, specific deterrence is an important consideration.

47    In applying the totality principle, it is appropriate for me to consider the overall penalty for the conduct, bearing in mind the features identified in paragraph 31 above.

48    Leaving aside the CFMEU’s poor record, I would be disposed to consider a penalty in the low to mid range as appropriate. However, the CFMEU’s poor record is a significant factor which justifies a penalty above the mid range. When I have a “final look” at the penalties, I think the matters identified in paragraph 31 above should be reflected in the penalties. I will impose a pecuniary penalty of $25,000 in relation to each contravention.

Conclusion

49    The orders I will make are as follows:

THE COURT DECLARES THAT:

1.    The Second Respondent, Aaron Cartledge, contravened s 343(1) of the Fair Work Act 2009 (Cth) (FW Act) on 22 November 2013 by verbally threatening to organise industrial action against the joint venture partners Hansen Yuncken Pty Ltd and Leighton Contractors Pty Ltd (HYLC) with the intent to coerce HYLC, through its employees, to not exercise a workplace right within the meaning of s 341(1)(b) of the FW Act, namely the right to initiate a proceeding under the FW Act to enforce a Fair Work Commission Order.

2.    By reason of s 363 of the FW Act, the First Respondent, the Construction Forestry, Mining and Energy Union, is taken to have contravened section 343(1) of the FW Act by the conduct of the Second Respondent constituting the contravention in Declaration 1 hereof.

3.    The Third Respondent, Michael McDermott, contravened s 343(1) of the FW Act on 22 November 2013 by verbally threatening to organise industrial action against HYLC with the intent to coerce HYLC, through is employees, to not exercise a workplace right within the meaning of s 341(1)(b) of the FW Act, namely the right to initiate a proceeding under the FW Act to enforce a Fair Work Commission Order.

4.    By reason of section 363 of the FW Act, the First Respondent, the Construction Forestry, Mining and Energy Union, is taken to have contravened s 343(1) of the FW Act by the conduct of the Third Respondent constituting the contravention in Declaration 3 hereof.

THE COURT ORDERS THAT:

5.    The First Respondent pay a penalty of $25,000 in respect of its contravention of s 343 of the FW Act by reason of s 363 as set out in Declaration 2 hereof.

6.    The First Respondent pay a penalty of $25,000 in respect of its contravention of s 343 of the FW Act by reason of s 363 of the FW Act as set out in Declaration 4 hereof.

7.    The Second Respondent pay a penalty of $3,750 in respect of his contravention of s 343 of the FW Act as set out in Declaration 1 hereof.

8.    The Third Respondent pay a penalty of $3,750 in respect of his contravention of s 343 of the FW Act as set out in Declaration 3 hereof.

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

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated:    19 January 2017