FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The BKH Contractors Case) (No 2) [2018] FCA 1563

ORDERS

THE COURT ORDERS THAT:

1.    The parties are to bring in Short Minutes of Orders to give effect to these reasons within fourteen days.

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

REASONS FOR JUDGMENT

1    In March 2016, the Director of Fair Work Building Industry Inspectorate commenced a proceeding in this Court with the filing of an Originating Application and a Statement of Claim.

2    The Construction, Forestry, Mining and Energy Union (the “CFMEU”) and thirteen individual officers or employees of the Union were named as Respondents. Contraventions of the Fair Work Act 2009 (Cth) were alleged. During the course of the proceeding, claims against a number of the individual Respondents were discontinued, and the Australian Building and Construction Commissioner (the “Commissioner”) was substituted as the Applicant in the proceeding.

3    In February 2018, it was concluded that a number of contraventions had been made out: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42. One or other of those contraventions occurred on 5 June 2014, 11, 12, 16 and 17 March 2015. The sections of the Fair Work Act which it has been concluded were contravened were ss 340, 343, 494 and 500.

4    Now before the Court is the question of the quantification of the penalties to be imposed.

5    Written submissions have been filed on behalf of the Commissioner and joint submissions for the First, Second, Third, Fifth, Eighth, Ninth and Fourteenth Respondents, being the CFMEU and all of the remaining individual Respondents except for the Thirteenth Respondent. Separate submission have been filed on behalf of the Thirteenth Respondent, being Mr Ben Garvey, who was separately represented. Supplementary written submissions were filed after the hearing.

THE PRINCIPLES TO BE APPLIED

6    The process of assessing penalties under the Fair Work Act is relatively settled.

7    In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113, (2017) 254 FCR 68 (“ABCC v CFMEU”) – a decision of recurring relevance to the present case – Dowsett, Greenwood and Wigney JJ summarised some of the general principles of fixing civil penalties in an industrial context as follows (at 88):

General principles

[98]    Whereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty is primarily, if not wholly, protective in promoting the public interest in compliance. The principal object of a pecuniary penalty is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene; both specific and general deterrence are important. A pecuniary penalty for a contravention of the law must be fixed with a view to ensuring that the penalty is not to be regarded by the offender or others as an acceptable cost of doing business. In relation to general deterrence, it is important to send a message that contraventions of the sort under consideration are serious and not acceptable.

[99]    The question whether a pecuniary penalty involves an element of punishment remains somewhat controversial. To a certain extent, that debate appears to be more semantic or philosophical than real. It is sufficient to say that, accepting that the primary purpose of imposing a pecuniary penalty is to protect and deter, that purpose is achieved by imposing a punishment in the form of a pecuniary penalty.

(Citations omitted.)

8    In Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, (2015) 258 CLR 482 at 506, French CJ, Kiefel, Bell, Nettle and Gordon JJ expressly endorsed deterrence as the primary purpose of civil penalties in the industrial law context:

[55]    No less importantly, whereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty, as French J explained in Trade Practices Commission v CSR Ltd [[1991] ATPR ¶ 41-076 at 52,152], is primarily if not wholly protective in promoting the public interest in compliance:

“Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act] … The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act.”

9    In Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54, (2013) 250 CLR 640 at 658 to 659, French CJ, Crennan, Bell and Keane JJ had earlier observed that:

[65]    General and specific deterrence must play a primary role in assessing the appropriate penalty in cases of calculated contravention of legislation where commercial profit is the driver of the contravening conduct.

10    Different Judges of this Court have expressed this object of imposing a penalty in different ways. In Australian Building and Construction Commissioner v Pauls [2017] FCA 843 at [14] Rangiah J said that the “principal, and probably the only, object of a civil penalty is to deter repetition of the relevant conduct”.

11    The factors to be taken into account when assessing the quantum of the penalties to be imposed to give effect to the object of deterrence are also relatively well settled.

12    One authority frequently cited as a convenient summary of relevant factors to be taken into account in fixing pecuniary penalties is the decision of Tracey J in Kelly v Fitzpatrick [2007] FCA 1080 at [14], (2007) 166 IR 14 at 18 to 19. His Honour was there called upon to quantify penalties for admitted contraventions of the Transport Workers Award 1998 and his Honour there adopted the following as a “non-exhaustive range of considerations” to be taken into account:

•    The nature and extent of the conduct which led to the breaches.

•    The circumstances in which that conduct took place.

•    The nature and extent of any loss or damage sustained as a result of the breaches.

•    Whether there had been similar previous conduct by the respondent.

•    Whether the breaches were properly distinct or arose out of the one course of conduct.

•    The size of the business enterprise involved.

•    Whether or not the breaches were deliberate.

•    Whether senior management was involved in the breaches.

•    Whether the party committing the breach had exhibited contrition.

•    Whether the party committing the breach had taken corrective action.

•    Whether the party committing the breach had cooperated with the enforcement authorities.

•    The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements and

•    The need for specific and general deterrence.

As his Honour has subsequently pointed out, “[e]ach of these considerations has the potential to have both an ameliorative and aggravating impact in the course of the instinctive synthesis process”: Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213 at [16]. See also: Australian Building and Construction Commissioner v Ingham (No 2) (The Enoggera Barracks Case) [2018] FCA 263 at [59] to [66] per Rangiah J.

13    In ABCC v CFMEU [2017] FCAFC 113, (2017) 254 FCR 68, Dowsett, Greenwood and Wigney JJ summarised the relevant considerations as follows (at 88 to 90):

[100]    The fixing of a pecuniary penalty involves the identification and balancing of all the factors relevant to the contravention and the circumstances of the defendant, and making a value judgment as to what is the appropriate penalty in light of the protective and deterrent purpose of a pecuniary penalty.

[102]    In general terms, the factors that may be relevant when fixing a pecuniary penalty may conveniently be categorised according to whether they relate to the objective nature and seriousness of the offending conduct, or concern the particular circumstances of the defendant in question.

[103]    The factors relating to the objective seriousness of the contravention include: the extent to which the contravention was the result of deliberate, covert or reckless conduct, as opposed to negligence or carelessness; whether the contravention comprised isolated conduct, or was systematic or occurred over a period of time; if the defendant is a corporation, the seniority of the officers responsible for the contravention; the existence, within the corporation, of compliance systems and whether there was a culture of compliance at the corporation; the impact or consequences of the contravention on the market or innocent third parties; and the extent of any profit or benefit derived as a result of the contravention.

[104]    The factors that concern the particular circumstances of the defendant, particularly where the defendant is a corporation, generally include: the size and financial position of the contravening company; whether the company has been found to have engaged in similar conduct in the past; whether the company has improved or modified its compliance systems since the contravention; whether the company (through its senior officers) has demonstrated contrition and remorse; whether the company had disgorged any profit or benefit received as a result of the contravention, or made reparation; whether the company has cooperated with and assisted the relevant regulatory authority in the investigation and prosecution of the contravention; and whether the company has suffered any extra-curial punishment or detriment arising from the finding that it had contravened the law.

The factors of relevance to a corporation are also largely applicable to a union which has been found to have contravened the Fair Work Act.

14    In Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53, (2018) 356 ALR 389, Allsop CJ, Davies and Wigney JJ have more recently observed, in the context of considering an appeal against the quantum of penalties imposed in respect to contraventions of the Trade Practices Act 1974 (Cth), that:

[55]    … There is no requirement for any introductory discussion of principle, other than to say that the task is one that is evaluative, taking into account all the circumstances of the case, not to be reached mechanically or by some illusory process of exactitude, but rather by evaluation that is articulated to a point (but no further) that is useful and meaningful. One starts the process by giving proper weight to the statutory maximum as referable to the most serious kind of contravention. We have given particular regard to the maximum penalty here under s 76: $10 million.

15    The quantification of the appropriate penalty or penalties to be imposed in respect to contravening conduct is thus a process of having regard to a number of considerations, including in particular the need for any penalty or penalties imposed to act both as a specific deterrent to the person that has been found to have engaged in contravening conduct and as a general deterrent to others. Contraventions involving coercion, as is the case in respect to contraventions of s 343 of the Fair Work Act, are “a particular serious form of industrial (mis)conduct”: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53 at [97], (2017) 249 FCR 458 at 480 per Dowsett and Rares JJ

16    It should also be stressed that a penalty should not be regarded as the “acceptable cost of doing business”: Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20 at [62] and [68], (2012) 287 ALR 249 at 265 to 266 per Keane CJ, Finn and Gilmour JJ. See also Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54 at [64], (2013) 250 CLR 640 at 658 to 659 per French CJ, Crennan, Bell and Keane JJ; Fair Work Ombudsman v Jetstar Airways Ltd [2014] FCA 33 at [52] per Buchanan J. An option not countenanced by the Courts is that a person may “choose to break the law and simply pay the penalty”: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53, (2017) 249 FCR 458 at 481. Dowsett and Rares JJ there expressed this approach as follows:

[100]    In a liberal democracy, it is assumed that citizens, corporations and other organisations will comply with the law. Such compliance is not a matter of choice. The community does not accept that a citizen, corporation or other organisation may choose to break the law and simply pay the penalty. The courts certainly do not accept that proposition. Such acceptance would pose a serious threat to the rule of law upon which our society is based. It would undermine the authority of Parliament and could lead to the public perception that the judiciary is involved in a process which is pointless, if not ridiculous.

[101]    The Parliament’s purpose in legislating to provide that particular proscribed conduct will attract a civil penalty was to deter persons, including but not limited to trade unions or corporations, from engaging or continuing to engage in such conduct. A civil penalty would lose its utility if the person on whom it was imposed simply treated it as a cost of continuing to carry on with the very conduct that had just been penalised.

See also: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case) (No 2) [2018] FCA 163 at [40] per Tracey J.

17    Finally, it should also be recognised that the process of assessing penalties is not an exact science but rather a process of “instinctive synthesis”: Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [27] to [28], [55] and [78], (2008) 165 FCR 560 at 567 to 568 per Gray J, 572 and 577 per Graham J; Director of the Fair Work Building Industry Inspectorate v Cartledge [2014] FCA 1047 at [52] per Mansfield J; Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (No 4) [2017] FCA 580 at [35] per Gilmour J; United Firefighters Union of Australia v Country Fire Authority (No 2) [2017] FCA 1614 at [38] per Murphy J; Australian Securities and Investments Commission v Wealth & Risk Management Pty Ltd (No 2) [2018] FCA 59 at [154] per Moshinsky J.

18    Operating within these generally expressed principles are further relatively well settled principles going to more discrete considerations of relevance to the present proceeding, namely:

    the relevance of the statutory maximum penalty in the process of quantifying penalties;

    the requirement to impose separate penalties for separate contraventions;

    the imposition of penalties where multiple contraventions arise from a common set of facts;

    the application of the “course of conduct” and “totality” principles;

    the need for parity in the penalties imposed on different contravenors;

    the relevance of the loss caused by the contravening conduct;

    the relevance of the nature and size of a contravening organisation; and

    the relevance of the parties submissions in guiding the Court’s discretion.

The maximum penalty – a yardstick

19    In undertaking the task of assessing and quantifying the penalties to be imposed, the maximum penalty prescribed by the Commonwealth legislature for a specific contravention serves as a “yardstick” against which the assessment of penalties is generally to proceed: cf. Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357 at 372. Gleeson CJ, Gummow, Hayne and Callinan JJ there observed:

[30]    Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing, Stockdale and Devlin observe that:

“A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century … or because it has more recently been set at a high catch-all level … At other times the maximum may be highly relevant and sometimes may create real difficulties …

A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate].”

[31]    It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.

(Footnote omitted.)

Their Honours there continued (at 372):

[31]    … That having been said, in our opinion, it will rarely be, and was not appropriate for [the Judge below] to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case.

Although these comments were made in the context of the criminal law and sentencing for drug offences, they have since been applied in a variety of other statutory contexts (e.g., Australian Securities and Investments Commission v Cassimatis (No 9) [2018] FCA 385 at [72] per Dowsett J) and in the industrial law context both by other courts (e.g., Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Industrial Relations Secretary [2018] NSWCA 39 at [150] per Bathurst CJ (Gleeson and Simpson JJA agreeing)) and this Court when assessing penalties under Fair Work Act: e.g., Fair Work Ombudsman v Group Property Services Pty Ltd (No 2) [2017] FCA 557 at [390] to [391] per Katzmann J; ABCC v CFMEU [2017] FCAFC 113, (2017) 254 FCR 68 at 90 per Dowsett, Greenwood and Wigney JJ.

Separate penalties for separate contraventions

20    Absent statutory authority, it is not permissible for a single penalty to be imposed in respect of multiple contraventions.

21    In ABCC v CFMEU [2017] FCAFC 113, (2017) 254 FCR 68 at 92 to 93 Dowsett, Greenwood and Wigney JJ, when discussing the “course of conduct” and “totality” principles, observed:

[114]    The important point to emphasise is that the course of conduct principle, in the criminal context at least, does not operate to permit a sentencing judge to impose a single sentence in respect of multiple offences on the basis that the offences formed part of a course of conduct. Absent a statutory provision that provides otherwise, a sentencing judge is to impose a separate sentence, albeit with the option of concurrency, for each offence.

…

[118]    While, in the criminal sentencing context, the totality principle is generally applied in cases involving sentences of imprisonment, it has been held to apply to the fixing of fines. In the case of fines, the Court must fix a fine for each offence and then review the aggregate to ensure that it is just and appropriate. If the result of the aggregation of multiple fines is that the penalty is excessive, that may lead to the moderation of the fine imposed in respect of each offence.

[119]    … [T]he important point to emphasise is that, in the criminal sentencing context, application of the totality principle does not authorise or permit the sentencing court to impose a single sentence for multiple offences. …

[120]    Like the course of conduct principle, the totality principle has been picked up and applied in the context of civil pecuniary penalty proceedings.

(Citations omitted.)

Overlapping conduct & multiple contraventions

22    The need for separate penalties to be imposed in respect to separate contraventions may result in a person effectively being exposed to multiple penalties for the same conduct or exposed to multiple penalties where the facts which satisfy an element or elements of one contravention also satisfy an element or elements of another contravention.

23    The problem of ensuring that a penalty is fair and appropriate in all the circumstances is a problem not confined to civil remedy provisions in Commonwealth legislation. It again has its analogies with (for example) the criminal law.

24    When imposing penalties, the law has, accordingly, long-recognised that a person should not be exposed to multiple penalties for the same conduct.

25    This generally expressed principle reveals itself in a number of different ways, including the common law concepts or principles variously expressed as:

    “double punishment”;

    punishment for a “single course of conduct”; and

    “totality”.

In the present context, the Fair Work Act also includes provisions as to:

    “[c]ivil double jeopardy” (s 556); and

    “course of conduct” (s 557).

It is ss 556 and 557 which are of present concern.

26    Section 556 of the Fair Work Act provides as follows:

Civil double jeopardy

If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct.

Notwithstanding the apparent simplicity with respect to the terms employed in s 556, it is a section which gives rise to difficulties of both interpretation and application. The difficulty with the interpretation of the provision arises primarily by reason of the phrase “particular conduct” and the extent to which there need be a correlation between that phrase and the term “conduct” later appearing in the provision; the difficulty as to the application of the section to the circumstances of any given case arises by reason of a need to properly characterise the “particular conduct” and the “conduct” by reference to the facts and circumstances of individual cases.

27    The difficulty of interpretation has been resolved, at least to date, by construing the phrase “particular conduct” as not confining the operation of s 556 to those circumstances in which the “constituent elements” of each of the two (or more) contraventions are identical: see e.g., Australian Building and Construction Commissioner v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) (No 2) [2017] FCA 367 at [38] to [40] per Jessup J; Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088 at [56] to [61] per White J (“Huddy”); Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (No 2) [2018] FCA 897 at [58] to [64] per Barker J.

28    In The Australian Paper Case (No 2) [2017] FCA 367 a respondent had been found to have contravened both ss 417 and 421 of the Fair Work Act. The question arose as to whether a penalty could be imposed in respect to each of the two contraventions or only a single penalty. It was concluded that s 556 operated such that only one penalty could be imposed. The judge in that case, Jessup J, posed the question for resolution and recounted the argument there presented for resolution as follows:

[36]    I consider next the contraventions of s 421(1) of the FW Act on 31 March 2014. In this area of the case, s 556 of the FW Act is relevant. … The question arises whether, having imposed a penalty on a particular respondent for his or its contravention of s 417, the court is prevented by s 556 from imposing a separate penalty for his or its contravention of s 421.

…

[38]    The problem has two dimensions. The first arises in what I shall describe as the simple case of two or more provisions having been contravened by the same conduct. That looks as though it ought to attract the operation of s 556, but counsel for the applicant submitted that the section operates only where the constituent elements of each contravention are the same. For example, in the matter which is presently under consideration – industrial action taken in contravention of ss 417(1) and 421(1) – the elements were not the same. Under s 417(1), but not under s 421(1), it was an element that the relevant enterprise agreement be within term. Under s 421(1), but not under s 417(1), it was an element that an order by the Commission proscribing the industrial action have been made. It was submitted that, in this sense, it could not be said that the penalty for which the FW Act provided related to the same “particular conduct” in each case.

His Honour proceeded to resolve the argument as follows:

[39]    I think it unlikely that the draftsman had such a limited operation in mind when s 556 was on the drawing board. I doubt that he or she would have contemplated that there were, either in the FW Act as such or in that Act and in another law of the Commonwealth, two or more provisions which defined contravening conduct in terms that involved precisely matching elements. I am not aware of any such situation, and counsel for the applicant drew my attention to none. It is hard to imagine why the legislature would double up with identical legislation in the way that would be required to provide a setting for the viability of this submission on behalf of the applicant.

[40]    The better view is that the reference to “particular conduct” in s 556 is to what the person actually did, with all of its attributes and in its whole context. If that conduct gives rise to liability to penalty under two or more provisions, the section is, in my view, engaged. In the present case, the conduct of the workers who took the industrial action attracted liability under s 417(1) and under s 421(1). It is true that, additionally to that conduct, there were adjectival elements the presence of which were necessary ingredients of the provisions respectively, and that these elements differed as between the two (the in-term agreement under s 417(1) and the Commission’s order under s 421(1)), but, as it happened, both were in fact present on 31 March 2014 and both gave legal consequences to what the workers actually did. In my view, s 556 would stand in the way of penalties being imposed on the workers themselves under both sections, and the same applies where others, such as the organisers, were deemed to have contravened because of their involvement in that very conduct.

29    Subsequently, in Huddy, White J said that the “effect of s 556 is to preclude the imposition of pecuniary penalties for contraventions of two or more civil remedy provisions in respect of the same ‘particular conduct’”: [2017] FCA 1088 at [55]. Section 556, White J there further observed, extends “to contraventions of multiple provisions in the [Fair Work Act] itself”. His Honour then referred to the Australian Paper Case (No 2).

30    The matter again came before the Court in the Gorgon Project Case (No 2). Barker J there helpfully collated the arguments previously advanced and rejected a submission that The Australian Paper Case (No 2) was “plainly wrong”: [2018] FCA 897 at [63]. In doing so, his Honour said:

[63]    I do not consider in these circumstances The Australian Paper Case (No 2) was plainly wrong.

[64]    For those reasons, I would apply s 556 in this case so that only one penalty should be imposed in respect of the three contraventions.

[65]    I do not accept the submission that either s 500, or s 348, or s 346(a) should in some conceptual theoretical sense be accorded priority status as the lead penalty offence. In my view, the Court should consider the seriousness of the contravening conduct and determine for itself, objectively on the facts, in respect of which contravention the primary penalty should be imposed.

31    But for these decisions, it may nevertheless be respectfully observed, the phrase “particular conduct” is readily susceptible of a construction which would confine the operation of s 556 to those factual circumstances in which the “particular conduct” which constitutes a contravention of one provision is the same as that conduct which also constitutes a contravention of another provision. The contrary construction of s 556 is one which, with respect, places little significance on the term “particular.”

32    The contrary construction of s 556 which was endorsed by Jessup J in The Australian Paper Case (No 2) [2017] FCA 367, however, is one which is not “plainly wrong” and is the approach to be pursued in the present proceeding.

33    Section 557 provides as follows:

Course of conduct

(1)    For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:

(a)    the contraventions are committed by the same person; and

(b)    the contraventions arose out of a course of conduct by the person.

(2)    The civil remedy provisions are the following:

(a)    subsection 44(1) (which deals with contraventions of the National Employment Standards);

(b)    section 45 (which deals with contraventions of modern awards);

(c)    section 50 (which deals with contraventions of enterprise agreements);

(d)    section 280 (which deals with contraventions of workplace determinations);

(e)    section 293 (which deals with contraventions of national minimum wage orders);

(f)    section 305 (which deals with contraventions of equal remuneration orders);

(g)    subsection 323(1) (which deals with methods and frequency of payment);

(h)    subsection 323(3) (which deals with methods of payment specified in modern awards or enterprise agreements);

(i)    subsection 325(1) (which deals with unreasonable requirements on employees to spend or pay amounts);

(ia)    subsection 325(1A) (which deals with unreasonable requirements on prospective employees to spend or pay amounts);

(j)    subsection 417(1) (which deals with industrial action before the nominal expiry date of an enterprise agreement etc.);

(k)    subsection 421(1) (which deals with contraventions of orders in relation to industrial action);

(l)    section 434 (which deals with contraventions of Ministerial directions in relation to industrial action);

(m)    subsection 530(4) (which deals with notifying Centrelink of certain proposed dismissals);

(n)    subsections 535(1), (2) and (4) (which deal with employer obligations in relation to employee records);

(o)    subsections 536(1), (2) and (3) (which deal with employer obligations in relation to pay slips);

(p)    subsection 745(1) (which deals with contraventions of the extended parental leave provisions);

(q)    section 760 (which deals with contraventions of the extended notice of termination provisions);

(r)    subsection 785(4) (which deals with notifying Centrelink of certain proposed terminations);

(s)    any other civil remedy provisions prescribed by the regulations.

(3)    Subsection (1) does not apply to a contravention of a civil remedy provision that is committed by a person after a court has imposed a pecuniary penalty on the person for an earlier contravention of the provision.

The object and purpose of provisions such as s 557 and its predecessor provisions in industrial legislation “is to ensure that an ‘offender is not punished twice for what is essentially the same criminality’”: Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62 at [18], (2014) 221 FCR 153 at 161 per North, Flick and Jagot JJ (“Rocky Holdings”).

34    The sections in issue in the present proceeding, namely ss 340, 343, 349 and 500 are not listed in s 557(2).

35    In respect to those provisions listed in s 557(2), there is an “automatic deeming” effected by s 557(1). But s 557 does not “cover the field” – at least “when imposing a penalty”: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53, (2017) 249 FCR 458 at 478. Dowsett and Rares JJ there observed:

[87]    The primary judge considered that the CFMEU (in respect of the contraventions of Messrs Buchan, Molina and Joshua) and Mr McDonald (in respect of his two contraventions) had engaged in a single course of conduct. His Honour did not address s 557 of the Act. That provided that for the purposes of Pt 4-1 (in which the power in s 546 to impose a pecuniary penalty appears), two or more contraventions by the same person of a civil remedy provision referred to in s 557(2) are deemed, subject to s 557(3), to constitute a single course of conduct and must be taken to be a single contravention. Importantly, s 348 was not included in s 557(2), so the automatic deeming effected by s 557(1) did not apply to any contravention of s 348. That was unlike, for example, the position under s 557 in respect of multiple contraventions of either s 417(1), which dealt with industrial action before the normal expiry date of an enterprise agreement, or s 434, which dealt with contraventions of Ministerial directions in relation to industrial action (see s 557(2)(j) and (l)). Moreover, s 557(3) provided that the deeming in s 557(1) of a single course of conduct did not apply to the contravention of any civil remedy provision (including ss 417(1) and 434) that was committed by a person after a court had imposed a pecuniary penalty on the person for an earlier contravention of the provision.

[88]    In our opinion, s 557 did not cover the field and did not exclude the common law principle of taking into account, when imposing a penalty, whether the conduct complained of constituted a single course of conduct. However, s 557 provided a legislative indication that certain forms of concerted industrial action, such as multiple contraventions of ss 417(1) and 434, would be deemed, only in the case of a first contravention by the person, to be a single contravention. That contrasted with the legislative purpose of treating one contravention of s 348 differently from ones to which s 557 applied. The Parliament appears to have intended that multiple contraventions of s 348, in what, in other circumstances (such as those covered by s 557), might be treated as a course of conduct, would not necessarily attract any sentencing leniency.

36    In applying these observations, Rangiah J in Australian Building and Construction Commissioner v Pauls [2017] FCA 843 at [22] similarly concluded that although s 557(1) did not apply to contraventions of s 355, the “course of conduct” or “one transaction” principle may apply to multiple contraventions of s 355.

37    The application of ss 556 and/or 557 to the facts of the present case remains to be resolved.

Overlapping conduct, “course of conduct” & “totality”

38    Notwithstanding the need to impose a penalty in respect to each contravention, it nevertheless remains open to consider whether the quantification of a penalty with respect to multiple contraventions arising from the same facts is fair and just by reference to the “totality” of the penalties imposed and whether the conduct giving rise to the multiple contraventions is but a “single course of conduct”.

39    The issues of “totality” and “course of conduct” were addressed by the Full Court in ABCC v CFMEU [2017] FCAFC 113, (2017) 254 FCR 68. On the facts of that case there was “an issue as to exactly how many contraventions the unions were involved in”: [2017] FCAFC 113 at [57], (2017) 254 FCR at 80. The issue was of importance because it was “important to determine the number of contraventions in order to work out the aggregate maximum penalty that could be imposed”: [2017] FCAFC 113 at [57], (2017) 254 FCR at 80. The “revised statement of agreed facts [was] equally opaque in terms of identifying the number of contraventions”: [2017] FCAFC 113 at [61], (2017) 254 FCR at 81. The maximum penalty for a corporation in respect to each contravention was $110,000.

40    Against that background, Dowsett, Greenwood and Wigney JJ identified the issue to be addressed as follows (at 90):

Course of conduct, totality and the fixing of penalties for multiple contraventions

[108]    While there was no dispute concerning the general principles applicable to the fixing of pecuniary penalties, as already noted there was some controversy concerning the relevant principles relating to the fixing of pecuniary penalties for multiple contraventions. The nub of the issue concerned whether, in cases involving multiple contraventions of a civil penalty provisions or provisions, it was permissible and appropriate for the Court to impose a single pecuniary penalty, or to group similar contraventions together and impose single penalties in respect of those groups, particularly where the contraventions were part of a course or courses of conduct.

41    Their Honours went on to address the “course of conduct” principle as follows (at 91 to 92):

Course of conduct

[111]    Like many of the principles that apply to the fixing of pecuniary penalties, the so-called course of conduct, or one-transaction, principle is derived from criminal law sentencing principles. …

[112]    The principle, as applied in sentencing for criminal offences, was explained in the following terms by Owen JA in Royer v Western Australia (2009) 197 A Crim R 319 at [22]:

… At its heart, the one transaction principle recognises that, where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality. The interrelationship may be legal, in the sense that it arises from the elements of the crimes. It may also be factual, because of a temporal or geographical link or the presence of other circumstances compelling the conclusion that the crimes arise out of substantially the same act, omission or occurrences.

[113]    In the criminal sentencing context, the course of conduct is a tool of analysis that generally assists a sentencing judge in determining whether sentences of imprisonment for separate offences should be ordered to be served concurrently or consecutively. …

[114]    The important point to emphasise is that the course of conduct principle, in the criminal context at least, does not operate to permit a sentencing judge to impose a single sentence in respect of multiple offences on the basis that the offences formed part of a course of conduct. Absent a statutory provision that provides otherwise, a sentencing judge is to impose a separate sentence, albeit with the option of concurrency, for each offence.

[115]    The course of conduct principle has been applied in the civil pecuniary penalty context …

42    Their Honours then addressed the “totality” principle as follows (at 92 to 94):

Totality

[116]    The totality principle, like the course of conduct principle, has its origins in criminal sentencing. …

[117]    The totality principle is sometimes confused or conflated with the course of conduct principle. That is perhaps not surprising because application of the totality principle may again result in a court adjusting what would otherwise have been consecutive or cumulative sentences to sentences that are wholly or partially concurrent. The proper approach, however, is to first consider the course of conduct principle and determine whether the sentences should be consecutive, or wholly or partly concurrent. Once that is done, the Court should then review the aggregate sentence to ensure that it is just and appropriate. That may require a further adjustment of the sentences: either by ordering further concurrency or, if appropriate, lowering the individual sentences below what would otherwise be appropriate.

[118]    While, in the criminal sentencing context, the totality principle is generally applied in cases involving sentences of imprisonment, it has been held to apply to the fixing of fines. In the case of fines, the Court must fix a fine for each offence and then review the aggregate to ensure that it is just and appropriate. If the result of the aggregation of multiple fines is that the penalty is excessive, that may lead to the moderation of the fine imposed in respect of each offence.

[119]    Once again, the important point to emphasise is that, in the criminal sentencing context, application of the totality principle does not authorise or permit the sentencing court to impose a single sentence for multiple offences. That has been made clear in a number of cases.

[120]    Like the course of conduct principle, the totality principle has been picked up and applied in the context of civil pecuniary penalty proceedings.

[121]    It would also appear that in the civil penalty context the totality principle, often in conjunction with the course of conduct principle, has been relied on to support the imposition of a single pecuniary penalty for multiple contraventions. Consideration must now be given to whether that is permissible and appropriate, either pursuant to the course of conduct principle, the totality principle, or on some other basis.

43    The “totality” principle had earlier been considered by Goldberg J in Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 at 53 where his Honour said:

The totality principle is designed to ensure that overall an appropriate sentence or penalty is appropriate and that the sum of the penalties imposed for several contraventions does not result in the total of the penalties exceeding what is proper having regard to the totality of the contravening conduct involved: McDonald v R (1994) 48 FCR 555; 120 ALR 629. But that does not mean that a court should commence by determining an overall penalty and then dividing it among the various contraventions. Rather the totality principle involves a final overall consideration of the sum of the penalties determined. In Mill v R (1988) 166 CLR 59; 83 ALR 1 the High Court accepted the following statement as correctly describing the totality principle:

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is “just and appropriate”. The principle has been stated many times in various forms: “when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong”; “when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences”.

44    In ABCC v CFMEU [2017] FCAFC 113, (2017) 254 FCR 68, Dowsett, Greenwood and Wigney JJ went on to address the question: “Can a single penalty be imposed for multiple contraventions?” In doing so, their Honours rejected as follows a submission advanced on behalf of the Commissioner (at 99 to 100):

[148]    The important point to emphasise is that, contrary to the Commissioner’s submissions, neither the course of conduct principle nor the totality principle, properly considered and applied, permit, let alone require, the Court to impose a single penalty in respect of multiple contraventions of a pecuniary penalty provision. There is no doubt that, in an appropriate case involving multiple contraventions, the Court should consider whether the multiple contraventions arose from a course or separate courses of conduct. If the contraventions arose out of a course of conduct, the penalties imposed in relation to the contraventions should generally reflect that fact, otherwise there is a risk that the respondent will be doubly punished in respect of the relevant acts or omissions that make up the multiple contraventions. That is not to say that the Court can impose a single penalty in respect of each course of conduct. Likewise, there is no doubt that in an appropriate case involving multiple contraventions, the Court should, after fixing separate penalties for the contraventions, consider whether the aggregate penalty is excessive. If the aggregate is found to be excessive, the penalties should be adjusted so as to avoid that outcome. That is not to say that the Court can fix a single penalty for the multiple contraventions.

45    When quantifying the penalties to be imposed, the Court initially assessed the appropriate penalty as $1,000 for each contravention and then proceeded as follows (at 103 to 104):

[169]    In all the circumstances, the appropriate penalty for each of the 605 contraventions of s 38 is $1,000. That figure takes into account the fact that the CFMEU’s culpability for each of the contraventions came about as a result of a course or courses of conduct whereby its officials attended the three sites and encouraged the workers at those sites, in a collective manner, to engage in the unlawful industrial action. The number of contraventions was largely a product of the number of workers on each site. The individual penalties would have been higher had the contraventions not arisen from a course or courses of conduct. …

[170]    The penalty of $1,000 for each contravention also takes into account the CFMEU’s admissions and cooperation referred to earlier. It is unnecessary and, in the particular circumstances of this case, undesirable to specify, in either percentage or dollar terms, a specific discount given in that regard. Suffice it to say that but for the admissions and cooperation, the penalties would have been significantly higher.

[171]    A penalty of $1,000 for each contravention would result in an aggregate penalty of $605,000, based on the estimate of the number of workers in whose contraventions of s 38 the CFMEU was involved. It is then necessary to consider whether the penalties should be adjusted having regard to the totality principle. There could be no doubt that an aggregate penalty of $605,000 would be a very large penalty. The size of the penalty is in many respects the product of the number of contraventions.

…

[173]    In all the circumstances, and particularly having regard to the Commissioner’s submissions and views concerning the appropriate penalty range, it is appropriate to apply the totality principle. It may be accepted that an aggregate penalty of $605,000 would be excessive. In all the circumstances it is appropriate to reduce the penalties by 50%. But for the Commissioner’s submissions, such a large discount may not have been applied. A reduction of the otherwise appropriate penalties by 50% would result in an overall or aggregate penalty of $302,500.

46    Of present importance is the endorsement by the Full Court – when quantifying the penalties to be imposed as opposed to considering whether a separate penalty should be imposed in respect to each contravention – of the appropriateness of:

    taking into account the “course or courses of conduct” that gave rise to the contraventions (at para [169]);

    “adjust[ing]” a penalty by reference to the “totality principle” (at para [171]); and

    considering whether an aggregate penalty “would be excessive” (at para [173]).

Justices Dowsett and Rares in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53 at [88], (2017) 249 FCR 458 at 478 made similar observations as to the ability to take into account “when imposing a penalty” whether conduct constituted “a single course of conduct”.

47    These general observations must, however, be considered by reference to the particular provisions of the statutory regime under consideration.

48    Although separate penalties must be imposed in respect to each contravention, it has thus been recognised that (subject to any statutory provision to the contrary), where there is an interrelationship between the legal and factual elements of a number of contraventions, a person who has engaged in such contravening conduct should not be penalised more than once for a single course of conduct: Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39, (2010) 194 IR 461 at 473. Middleton and Gordon JJ there observed:

[39]    As the passages in Construction, Forestry, Mining and Energy Union v Williams (2009) 191 IR 445 explain, a “course of conduct” or the “one transaction principle” is not a concept peculiar to the industrial context. It is a concept which arises in the criminal context generally and one which may be relevant to the proper exercise of the sentencing discretion. The principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is “the same criminality” and that is necessarily a factually specific enquiry. Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions.

(Emphasis in original.)

See also: The Enoggera Barracks Case [2018] FCA 263 at [85] per Rangiah J.

49    Although a Court imposing a civil penalty should “have regard to common elements in contraventions so as not to penalise a respondent twice for the same conduct”, in Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 Katzmann J went on to further observe:

[423]    … It seems to me, however, with the greatest respect, that grouping contraventions in such a way as to impose one penalty for multiple contraventions is wrong. As Jessup J observed in General Manager of the Fair Work Commission v Thomson (No 4) [2015] FCA 1433 at [10], “by taking [such an approach], the court would be failing to engage directly and specifically with the consequences of the contravention of each statutory norm”.

50    Placed to one side are those factual situations (for example) in which conduct may be pursued over a number of days or involve the same conduct of multiple persons in respect to whom a separate contravention could individually be made out. Where conduct has been pursued over a number of days it may be appropriate to characterise that conduct as not involving a separate contravention on each day but as a single contravention: The Australian Paper Case (No 2) [2017] FCA 367. Separate from any consideration of s 557 of the Fair Work Act, Jessup J there concluded that “each relevant employee contravened s 417(1) once over the three days in question”: [2017] FCA 367 at [4].

Parity

51    In circumstances such as the present, where a number of persons have been found to have contravened the same provision of the Fair Work Act by reason of their joint involvement, and even more generally, there is a need for there to be parity between the penalties imposed upon each of those persons.

52    A hallmark of justice, it has long been recognised, is the need for there to be equality before the law and for similar contraventions to attract similar penalties: NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 295 (“NW Frozen Foods”). In the context of an appeal against penalties imposed for contraventions of the Trade Practices Act for price fixing, Burchett and Kiefel JJ there observed:

A hallmark of justice is equality before the law, and, other things being equal, corporations guilty of similar contraventions should incur similar penalties: Trade Practices Commission v Axive Pty Ltd [[1994] ATPR 41-368 at 42,795]. There should not be such an inequality as would suggest that the treatment meted out has not been even-handed: cf the criminal law case Lowe v The Queen (1984) 154 CLR 606. However, other things are rarely equal where contraventions of the Trade Practices Act are concerned. In the present case, differing circumstances, size, market power and responsibility for the contraventions, as well as other factors, complicate any attempt to compare the penalties imposed on the appellant with those imposed on the other corporations.

Their Honours continued (at 295):

Another form of comparison is not appropriate. The facts of the instant case should not be compared with a particular reported case in order to derive therefrom the amount of the penalty to be fixed. Cases are authorities for matters of principle; but the penalty found to be appropriate, as a matter of fact, in the circumstances of one case cannot dictate the appropriate penalty in the different circumstances of another case. The point was well made by Spender J in Trade Practices Commission v Annand & Thompson Pty Ltd [[1987] ATPR 40-772 at 48,394] when he said:

“Each case must, of course, be viewed on its own facts and facts may be infinite in their variety.”

It follows, as his Honour also said, that ‘[t]he quantum of penalties imposed in other cases can seldom be of very much direct assistance’.

The loss resulting from the contraventions

53    As noted by Tracey J in Kelly v Fitzpatrick [2007] FCA 1080 at [14], (2007) 166 IR 14 at 18, a consideration relevant to the assessment of a penalty is the loss occasioned by the contravening conduct.

54    There need not, however, be an actual computation of the loss caused. Potential loss may also be taken into account: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) [2010] FCA 977, (2010) 199 IR 373 at 382. Barker J there observed:

[46]    … It is not possible to discount the potential losses. It is not possible simply to say that every project has built into it some wriggle room to ensure that a project will be finished on time according to the contract, even taking into account some industrial action. In my view, to approach the question of potential loss on this basis would be incorrect. While one cannot say with any certainty, as the respondents submit and the Commissioner, in effect, accepts, just what losses if any flow from the disruption, the potential is real and must be borne in mind in the assessment of penalty. It is exactly that sort of potential loss that, from an industrial point of view, brings pressure to bear on an employer. That is why the BCII Act proscribes the act that leads to the disruption.

Even loss or damage which has not been quantified but advanced at a “more generalised level” may be taken into account: Australian Building and Construction Commissioner v McCullough (No 2) [2017] FCA 295 at [30] to [39] per Barker J.

The size & nature of the CFMEU

55    The size and nature of an organisation is a consideration of relevance when assessing the appropriate penalty to be imposed in an industrial context: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 226. In considering the penalties to be imposed on the Respondent Union in that case for contempt, Tracey J there observed:

[30]    The size and nature of the organisation is a relevant factor in the assessment of an appropriate penalty: see Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd (2003) 196 ALR 350 at 358. This is because, generally, a failure to comply with an injunction or an undertaking which binds a large and powerful entity will be more likely to have an adverse impact on the public interest in the effective administration of justice than will a similar contravention by an individual engaged in private litigation. Moreover, an organisation which is accorded a favourable status under a legislative regime bears broader responsibility than does a private individual: statutory recognition and advantage carry with them responsibility to other participants in the industrial relations systems and to the wider community. That responsibility requires adherence to the rule of law and to dispute resolution procedures prescribed by legislation and enterprise agreements.

These observations are equally relevant to a contravention of the Fair Work Act.

56    As Dowsett, Greenwood and Wigney JJ noted in ABCC v CFMEU [2017] FCAFC 113 at [105], (2017) 254 FCR 68 at 90, the size of a body corporate does not of itself justify a higher penalty, but it may be “particularly relevant in determining the size of the pecuniary penalty that would operate as an effective deterrent”.

The submissions of the parties

57    It should finally be noted that the Court may be guided by the submissions of the parties as to the appropriate penalty or penalties to be imposed, albeit having to form its own independent judgment as to the appropriateness of the quantum to be imposed: Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, (2015) 258 CLR 482 at 504. French CJ, Kiefel, Bell, Nettle and Gordon JJ there considered some of the earlier decisions of this Court and concluded:

[48]    [NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285] and [Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72, [2004] ATPR 41-993] do not suggest that the task of a judge faced with an agreed civil penalty submission is to determine whether the submitted penalty is “wholly outside” the “range of penalties reasonably available” or that the court is “bound to impose [an agreed] penalty irrespective of whether it is considered appropriate”. To the contrary, as was emphasised in Mobil Oil, those cases make plain that the court is not bound by the figure suggested by the parties. The court asks “whether their proposal can be accepted as fixing an appropriate amount” and for that purpose the court must satisfy itself that the submitted penalty is appropriate.

(Footnotes omitted, emphasis in original.)

See also: Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi S.R.L. (No 13) [2017] FCA 851 at [13] per Besanko J; Australian Building and Construction Commissioner v Parker (No 2) [2017] FCA 1082 at [7], (2017) 270 IR 165 at 170 per Flick J (“ABCC v Parker (No 2)”).

THE QUANTIFICATION OF PENALTIES

58    Different considerations, obviously enough, apply with respect to each of the Respondents.

59    Of particular concern in the present proceeding is the need to:

    separately consider the penalty which should be imposed in respect to each contravention and to properly characterise conduct which may constitute separate contraventions by reference to the objective facts and circumstances giving rise to those contraventions,

but also the need to:

    consider whether the conduct giving rise to separate contraventions was such that the separate imposition of penalties would be effectively imposing multiple penalties for either the same conduct or for overlapping parts of the same conduct which separately went to make out the separate contraventions; and

    ensure that a person who has engaged in contravening conduct is not punished twice for the same conduct and to ensure that the total penalty imposed in respect to the contraventions is “just and appropriate” and not disproportionate.

The attempt being made is to quantify the appropriate penalty for each contravention whilst at the same time recognising that conduct may involve different factual elements – some elements of which go towards one contravention and different elements going to another contravention. Common to multiple different contraventions, however, may be one or more of those common facts.

60    Of importance is the need to consider the application of s 556 of the Fair Work Act to those contraventions that have been made out. Even though s 557 may not apply to such contraventions as ss 340 and 343, there nevertheless remains the necessity to ensure that a person is not exposed to multiple penalties in respect to those facts which overlap multiple contraventions. There is also the necessity to ensure that the penalties imposed in respect to those contraventions, in their totality, is fair and appropriate. Section 557(1) of the Fair Work Act cannot be invoked by the Respondents in the present proceeding because the provisions which have been contravened (namely ss 340, 343, 494 and 500) are not provisions which fall within s 557(2). That does not mean, however, that the Court cannot take into account the “course of conduct” principle when imposing a penalty: cf. Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53 at [88], (2017) 249 FCR 458 at 478 per Dowsett and Rares JJ. The fact that the contraventions presently in issue do not fall within s 557(2) also does not relieve the Court of the necessity to ensure that the penalties imposed are not disproportionate in their totality to the contravening conduct.

61    In respect to each individual Respondent the course which has been taken is thus to:

    identify the contraventions which have been made out and which have been the subject of declaratory relief;

    identify the maximum penalty in respect to each contravention;

    quantify the appropriate penalty that, free of other considerations extraneous to that particular contravention, would be appropriate; and

    thereafter quantify the penalty that should be imposed in respect to that contravening conduct.

The penalties imposed have also been reviewed to attempt to ensure parity between individual Respondents and to consider whether the penalties should be reduced by reason of (for example) any cooperation on the part of one or other of the Respondents in admitting the allegations made against them and how early in the proceeding any such admissions were made.

62    In respect to all of the Respondents, it may be noted that:

    other than in the case of Mr Garvey, there is no evidence of any contrition on the part of the individual Respondents or the Union or any change of behaviour (cf. Registered Organisations Commissioner v Transport Workers’ Union of Australia [2018] FCA 32 at [86] per Perram J); and

    there has been limited cooperation on the part of some Respondents in making admissions on the pleadings.

63    No “personal payment order” is sought against any of the individual Respondents of the kind envisaged in Director of the Fair Work Building Industry Inspectorate v Bragdon (No 2) [2015] FCA 998 and authorised by s 546 of the Fair Work Act. Personal payment orders were recently endorsed by the High Court in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3, (2018) 273 IR 211. Such an order has recently been made by the Full Court of this Court in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97.

64    Subject to these general observations, it is necessary to consider the circumstances of each individual Respondent against whom findings as to contraventions were ultimately sought by the Commissioner and against whom findings have been made.

Darren Taylor

65    The maximum penalty in respect to each contravention that has been found to have been made out and the penalty which would have been imposed upon Mr Taylor in respect to each such contravention but for the operation of s 556 and the evaluative adjustment of such penalties in order to ensure that they are not disproportionate to the conduct engaged in or not in line with the penalties imposed upon other Respondents to the present proceeding and the penalty in fact imposed may be summarised as follows:

66    The conduct of Mr Taylor on 5 June 2014 that attracted the allegations of contraventions of ss 340 and 343 focussed upon:

    his participation in the meeting held on 5 June 2014; and

    his “involvement” in the conduct of Mr Kera later on that day.

It was at that meeting that Mr Taylor handed to the subcontractors then present a copy of the Enterprise Agreement being proposed by the CFMEU. It has been concluded that it was at that meeting that Mr Taylor told the subcontractors that “if you don’t sign the new EBA we will pick one of you and smash your jobs”: [2018] FCA 42 at [112].

67    But for the operation of s 556 of the Fair Work Act and the need to avoid imposing a penalty in respect to the same “particular conduct”, the separate contraventions of ss 340 and 343 at the meeting would each have attracted a separate penalty. In quantifying each of those penalties, it is respectfully considered that the contravention of s 343 (being the contravention involving coercion) is the more serious of the two. As has been said by Dowsett and Rares JJ, “[i]t is important to recognise that coercion is a particularly serious form of industrial (mis)conduct”: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53 at [97], (2017) 249 FCR 458 at 480. The contravention of s 343 would thus attract a greater penalty than that in respect to the contravention of s 340. Considered in isolation, the appropriate penalty to be imposed for the contravention of s 343, namely the sum of $8,000, is one at the upper end of that permitted by the maximum. Again considered in isolation, the appropriate penalty for the contravention of s 340 would be $6,000.

68    But the “conduct” which has given rise to the contraventions of ss 340 and 343 is essentially the same. Section 556, in such circumstances, precludes the imposition of two penalties: The Australian Paper Case (No 2) [2017] FCA 367; The Gorgon Project Case (No 2) [2018] FCA 897. Adopting the approach advocated by Barker J in The Gorgon Project Case (No 2) [2018] FCA 897 at [65], it is considered that “objectively on the facts” the “primary penalty” should be imposed in respect to the s 343 contravention.

69    Even separate from any application of s 556, it would otherwise have been considered appropriate to revise the quantum of the penalties in respect to each contraventions of ss 340 and 343 arising by reason of both Mr Taylor’s participation in the meeting on 5 June 2014 and his later involvement in the conduct of Mr Kera.

70    A total penalty in the sum of $14,000 for the contraventions of ss 340 and 343 in respect of Mr Taylor’s participation in the meeting would have been considered excessive or disproportionate. But for the operation of s 556, the sum of $14,000 would have been reduced to a total of $11,000 between the two contraventions. As recognised in Rocky Holdings [2014] FCAFC 62 at [18], (2014) 221 FCR at 161, Mr Taylor should not be punished twice for the same conduct. Even though s 557 of the Fair Work Act may not be invoked with respect to these contraventions, as Senior Counsel for the Respondents submitted, there are a number of “tools” available whereby the imposition of two penalties for two contraventions may be reduced – including by recourse to the “course of conduct” or “one transaction” principle or the principle of “totality”.

71    Similarly, the assessment of the penalties for the contraventions of ss 340 and 343 arising by reason of Mr Taylor’s involvement in the conduct of Mr Kera has again been approached upon the basis of assessing what would have been considered to be an appropriate penalty if each had been considered in isolation. It has been concluded that Mr Taylor was involved in the conduct of Mr Kera on 5 June 2014: [2018] FCA 42 at [328] to [329]. But the extent of that involvement was not the subject of any express findings. It was submitted on his behalf that the “boundaries of both contraventions clearly overlapped” and that to “penalise [Messrs] Kera and Taylor for contraventions that fell in that area of overlap would be to penalise them both in a way that was disproportionate to the unlawfulness of their combined contravention”. It was further submitted that the penalty in respect to Mr Taylor should be “determined by what he had done” and that he did “nothing other than possess knowledge”. It may be accepted that the penalties imposed in respect to Mr Taylor’s involvement with the conduct later that day of Mr Kera should not be “disproportionate” and should be confined to “what he had done”, namely, becoming involved in Mr Kera’s conduct. Approached in that manner, and again considering each contravention in isolation, a penalty of $3,000 for each contravention would have been considered appropriate. That total sum of $6,000 would not have been reduced. A total penalty in the sum of $6,000 for Mr Taylor’s “involvement” in the conduct of Mr Kera would not have been considered unfair or disproportionate.

72    Section 556, however, precludes two penalties being imposed for Mr Taylor’s “conduct” in respect to his involvement in the conduct of Mr Kera and further precludes a reassessment of what would otherwise have been considered to be the appropriate penalty for each contravention simply to subvert the operation of s 556. Again, the “primary penalty” should be imposed in respect to the s 343 contravention.

73    Mr Taylor has been found in a previous case to have contravened the Fair Work Act on one occasion: Australian Building and Construction Commissioner v Parker [2017] FCA 564, (2017) 266 IR 340 (“ABCC v Parker”); ABCC v Parker (No 2) [2017] FCA 1082, (2017) 270 IR 165.

74    A penalty against Mr Taylor in the total sum of $11,000 is considered appropriate in the present case given, in particular:

    the serious nature of an offence involving an intent to coerce and the nature of the threat made by Mr Taylor at the meeting on 5 June 2014;

    the need to ensure parity between the conduct of Mr Taylor at the meeting and the conduct of Mr Kera later on the same day;

    the comparatively more egregious conduct pursued by Mr Taylor at the meeting on 5 June 2015 and his less certain involvement in the subsequent conduct of Mr Kera; and

    the need to ensure parity of penalty between the other individual Respondents.

Robert Kera

The maximum penalty in respect to each contravention that has been found to have been made out and the penalty which would have been imposed upon Mr Kera in respect to each such contravention but for the operation of s 556 and the evaluative adjustment of such penalties in order to ensure that they are not disproportionate to the conduct engaged in or not in line with the penalties imposed upon other Respondents to the present proceeding and the penalties in fact imposed are as follows:

75    The conduct of Mr Kera that attracted the allegation of contraventions of ss 340 and 343 on 5 June 2014 was the sending on that afternoon of the text message that said “[e]enie meenie miney mo!” The sending of that text, it has been concluded, “was sent by Mr Kera as a threat and a threat intended to reinforce the threat made earlier in the day by Mr Taylor”: [2018] FCA 42 at [126].

76    But for the operation of s 556 of the Fair Work Act and the need to avoid imposing a penalty in respect to essentially the same conduct, the separate contraventions of ss 340 and 343 in respect to the events on 5 June 2014 would each have attracted a separate penalty. As with Mr Taylor, it is likewise concluded that the contravention of s 343 is the more serious of the two contraventions and would thus have attracted a greater penalty.

77    A primary submission advanced by Counsel on behalf of Mr Kera was that the 5 June 2014 “contraventions of ss. 340 and 343 are based on the same interrelated factual elements”. That submission should be accepted. Section 556 is thus enlivened.

78    Even separate from any consideration being given to s 556, it would have been concluded that the two separate penalties that may otherwise have been imposed in respect to each contravention would have needed to be revisited. The penalty of $4,000 in respect to the s 340 contravention would have been reduced to $2,000 and the penalty for the s 343 contravention would have been reduced to $7,500. Such reductions would have been made to ensure that the aggregate penalty was not disproportionate.

79    However, s 556 applies such that only one penalty can be imposed and the necessity to determine “objectively on the facts” the one contravention which should attract “the primary penalty”: The Gorgon Project Case (No 2) [2018] FCA 897 at [65]. Again, as was the conclusion with respect to Mr Taylor, the “primary penalty” should be imposed in respect to the s 343 contravention.

80    Mr Kera’s conduct that attracted the allegation of a contravention of s 343 on 16 March 2015 was his involvement in blocking the entrance to the Wolli Creek Site. On that occasion it has been found that Mr Kera not only participated in the blockade but also exercised a degree of control or supervision over the other persons participating in the blockade. It was Mr Kera who thus gave “a signal to the other union officials and delegates” by way of a “nod of his head” which was followed by about six of the officials moving “from being spread out to … standing shoulder to shoulder together”: [2018] FCA 42 at [248]. The conduct which attracted the same allegation on 17 March 2015 was his attendance at the same site and again his involvement in blocking the entrance. The allegations of the contraventions on 16 and 17 March 2015 were the subject of admissions. It was submitted on behalf of Mr Kera that the contraventions that took place on these two days “are based on the same interrelated factual elements being the attending and the blockading of the site”. That submission is rejected. It is considered that the two contraventions should attract separate penalties, it not being possible to consider the conduct on the two successive days as being but a single course of conduct or but a single contravention: cf. The Australian Paper Case (No 2) [2017] FCA 367 at [3] to [4] per Jessup J. The participation in the blockade on those two days may have much in common, but the conduct remains separate and distinct and involves two contraventions. The conduct on those two days was not the same “particular conduct” for the purposes of s 556.

81    Mr Kera has been found in two separate cases to have contravened the Workplace Relations Act 1996 (Cth) and the Fair Work Act on six occasions: Darlaston v Parker [2010] FCA 771, (2010) 189 FCR 1; Darlaston v Parker (No 2) [2010] FCA 1382, (2010) 200 IR 353; ABCC v Parker [2017] FCA 564, (2017) 266 IR 340; ABCC v Parker (No 2) [2017] FCA 1082; (2017) 270 IR 165.

82    A penalty against Mr Kera in the total sum of $20,000 is considered appropriate given, in particular:

    the positions occupied by Mr Kera at the time, being State Joint Vice President and Assistant Secretary of the Construction and General Division of the NSW Divisional Branch of the CFMEU;

    the seriousness of the threat made on 5 June 2014; and

    the role played by Mr Kera in the blockades on 16 and 17 March 2015, in particular his role on 16 March 2015 which has attracted a greater penalty than that on the following day.

Again, consideration has also been given to:

    the extent to which Mr Kera has previously been found to have engaged in contravening conduct; and

    the need to ensure some degree of parity between the quantum of the penalties imposed on Mr Kera compared to those imposed upon the other individual respondents.

The assessment of the penalty in the sum of $20,000, it should be noted, has taken into account the fact of the admissions made by Mr Kera.

Mansour Razaghi

83    The maximum penalty that could potentially have been imposed in respect to Mr Razaghi and the penalty in fact imposed is as follows:

84    The conduct of Mr Razaghi that attracted the allegation as to a contravention of s 500 of the Fair Work Act focussed upon the role he played in securing entry to the Rhodes Site on 11 March 2015 and his subsequent conduct on that morning. Although Mr Razaghi claimed to have sought entry to the site to investigate professed concerns as to safety, difficulties were experienced in “accepting his account as providing any reasonable basis for any genuinely held belief as to the need to enter the Site”: [2018] FCA 42 at [193]. His evidence was “characterised … by evasiveness and a manifest lack of any willingness to give an honest response to the questions being asked in cross-examination”: [2018] FCA 42 at [193]. It was concluded that he had no genuine concern as to safety: [2018] FCA 42 at [196]. After having gained entry, Mr Razaghi then took an active part in the conduct on site, telling workers to “[s]top the [concrete] pour” and that they were “working unsafe”: [2018] FCA 42 at [208]. It was concluded that his object and purpose in gaining access “was to achieve the cessation of the concrete pour and the disruption of the work scheduled for that day”: [2018] FCA 42 at [315].

85    Of present concern, when quantifying the penalty to be imposed, is the conduct of Mr Razaghi which has been found to have been made out rather than the manner in which he gave his evidence.

86    Mr Razaghi has also been found to have been involved in the CFMEU campaign for the restoration of site allowances. The August 2015 edition of UNITY (for example) recording him as characterising that campaign as a “good victory” which was “reverberating positively across the industry”: [2018] FCA 42 at [195]. But, as was correctly submitted on behalf of the CFMEU and Mr Razaghi, there is nothing unlawful in a union pursuing a legitimate campaign on behalf of its members. That which attracted the contraventions of the Fair Work Act and the consequential need to consider the imposition of penalties was not the pursuit of an industrial campaign but rather the engagement in conduct contrary to the Fair Work Act.

87    On behalf of Mr Razaghi it was submitted that in accordance with the need for there to be parity in the quantum of penalties imposed he (and Mr Manna) “should be dealt with in a similar way to [Mr] Garvey for the purposes of determining penalty”. The forensic objective in making that submission was to align Mr Razaghi (and Mr Manna) with the submission made on behalf of Mr Garvey that there should be no penalty imposed upon Mr Garvey. There is, of course, a need for a court to be “even-handed”: cf. NW Frozen Foods (1996) 71 FCR at 295. As was there recognised, “other things being equal”, similar contraventions should incur similar penalties. However it was also there recognised that “other things are rarely equal”. In attempting to assess the comparative seriousness of the contravention of Mr Razaghi, together with that of Mr Manna, it is concluded that the conduct of Mr Razaghi should attract a greater penalty than that which should be imposed upon either Mr Manna or Mr Garvey.

88    The loss occasioned by the conduct of Mr Razaghi (together with Messrs Collier, Garvey and Manna) in disrupting the concrete pour on 11 March 2015 cannot be underestimated. When addressing the loss occasioned on that day it is not possible – contrary to the submission advanced on behalf of the Respondents – to confine that loss to the “costs in respect of the boom pump which had to be sent back on another day … and the cost of paying ‘idle workers who cannot perform work or are required to come back to the site on another occasion to finish the job’”: [2018] FCA 42 at [228]. That submission, with respect, totally ignores the finding also made that the “concrete that had been poured onto the deck had to be jackhammered up and removed because the structural integrity of the slab was deficient”: [2018] FCA 42 at [228]. Although not quantified, that disruption to the work and the loss occasioned by the remedial work to be undertaken would have been considerable. Although not susceptible of precise quantification, the evidence of loss included:

    an invoices from a supplier of concrete, totalling $14,856.03;

    a timesheet of a worker engaged in slab rectification work, totalling 18 hours; and

    trucks leaving the site as it was “obvious … that the pour was not going to proceed” on that day.

Even though a quantification of the total cost of the loss occasioned is not possible founded upon such evidence, the loss is nevertheless real and is of relevance to the quantification of the penalty to be imposed upon Mr Razaghi (and other individual Respondents): Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) [2010] FCA 977 at [46], (2010) 199 IR 373 at 382 per Barker J. Even in the absence of quantification, it may readily be inferred that the loss would be considerable.

89    A penalty against Mr Razaghi in the total sum of $8,000 is considered appropriate given, in particular:

    the “prominent role played by Mr Razaghi” in the CFMEU campaign to secure a site allowances, not by reason of his involvement in the campaign but by reason of his pursuit of that campaign by unlawful means: [2018] FCA 42 at [92];

    the disruption to the work to be undertaken at the Rhodes Site on 11 March 2015 and his contribution to that disruption;

    the fact that his professed concerns as to safety were rejected and that the object and purpose in fact sought to be achieved by entering the site was to disrupt the scheduled work;

    the loss in fact occasioned by the disruption to the work to be undertaken; and

    a comparative assessment of the conduct of Mr Manna and Mr Razaghi – and also the conduct of Mr Garvey.

Also taken into account is the fact that Mr Razaghi has not been found to have engaged in any other contravening conduct in any other case.

90    The contemplated penalty of $8,500 has been reduced to $8,000 to ensure that the penalty imposed is proportionate to the conduct engaged in and comparable to that imposed upon the other individual Respondents to the present proceeding.

Brian Parker

91    The maximum penalty that could potentially have been imposed in respect to Mr Parker and the penalty in fact imposed is as follows:

92    The conduct of Mr Parker that attracted the allegation of a contravention of s 343 of the Fair Work Act was his participation on 16 March 2015 in the blocking of “the main pedestrian entrance to the Wolli Creek Site in that the crowd impeded or obstructed access to the main pedestrian gate at the Wolli Creek Site.” The findings with respect to his involvement in that “crowd” demonstrate minimal involvement: [2018] FCA 42 at [244].

93    Mr Parker was, at the time of his contravention, a senior office holder in the CFMEU. An “Employment Separation Certificate” tendered at the penalty hearing records that Mr Parker resigned his employment with the Union in March 2018. His employer was there recorded as being the CFMEU Construction & General Division NSW.

94    It was submitted that a person in a position of prominence in the Union, such as Mr Parker, should not have greater penalties imposed on them than would otherwise be warranted by the conduct engaged in simply by reason of that position. It was submitted that if a person in a prominent position does very little, the objective seriousness of his conduct is still low notwithstanding the contravener’s position. But Senior Counsel on behalf of Mr Parker also quite properly accepted that a person in a position of prominence or notoriety may warrant a greater penalty if he brings with him to his contravening conduct the authority which is associated with the position held.

95    Mr Parker has been found in two separate cases to have contravened the Fair Work Act and the Workplace Relations Act on 8 occasions: ABCC v Parker [2017] FCA 564, (2017) 266 IR 340; ABCC v Parker (No 2) [2017] FCA 1082, (2017) 270 IR 165; Darlaston v Parker [2010] FCA 771, (2010) 189 FCR 1; Darlaston v Parker (No 2) [2010] FCA 1382, (2010) 200 IR 353.

96    Notwithstanding the Commissioner’s submission that “the Court should impose maximum penalties on … Parker”, it is concluded that a penalty in the sum of $8,000 is appropriate. That sum has been fixed by reference to:

    the positions occupied by Mr Parker in the CFMEU, namely his being the State Secretary of the Construction and General Division of the NSW Divisional Branch and a National Executive Committee Member;

    his participation in the discussions both before and after 16 March 2015 and the degree of influence he could exert in respect to the unlawful conduct being pursued by others;

    his involvement in the events that gave rise to the present proceeding, including his early involvement in the October 2014 meetings ([2018] FCA 42 at [129] to [132]), the November meeting ([2018] FCA 42 at [136] to [137]), the 13 March 2015 meeting ([2018] FCA 42 at [236] to [239], when Mr Parker told Mr Kera to “[c]alm down”), his attendance on site on 16 March 2015 and his meeting with Mr Howlin on 17 March 2015 when the dispute was resolved and the industrial action thereafter ceased ([2018] FCA 42 at [264] to [271]); and

    his having been found to have engaged in other contravening conduct in other cases.

The comparatively reduced penalty imposed, it is further considered, reflects an appropriate degree of parity between his conduct in the present proceeding compared with that of the other individual Respondents.

97    There is no difficulty when considering the conduct of Mr Parker which attracted the allegation as to contravention to look to his anterior involvement in the conduct of others, as did the Full Court in ABCC v CFMEU [2017] FCAFC 113 at [154] to [157], (2017) 254 FCR 68 at 101 per Dowsett, Greenwood and Wigney JJ.

98    It should also be expressly noted that the approach taken to Mr Parker’s involvement in the CFMEU campaign to secure payment of site allowances is consistent with the approach taken in respect to Mr Razaghi. The pursuit of a legitimate industrial campaign, of itself, does not attract any concern as to unlawful conduct. That which has attracted the penalty as against Mr Parker is not his involvement in the campaign but his pursuit of that campaign by unlawful means.

99    But for the admission made on 1 June 2017 as to the contravention of s 343 on 16 March 2015, it would have been concluded that a penalty of $8,500 should have been imposed. But an admission was made and the penalty to be imposed should be accordingly reduced.

100    A penalty in the amount of $8,000 is not considered to be disproportionate.

Luke Collier

101    The maximum penalties that could potentially have been imposed in respect to Mr Collier and the penalties in fact imposed are as follows:

102    The conduct of Mr Collier that attracted the allegations of contraventions centred upon his:

    entry upon the Rhodes Site on 11 March 2015 without an entry permit (s 494); and

    involvement on 11 March 2015 at the Rhodes Site in the parking of a car across the driveway preventing access of concrete trucks and his initial refusal to move the vehicle (s 343); and

    entry upon the Wolli Creek Site on 12 March 2015 without an entry permit (s 494).

Mr Collier admitted the contravention of s 494 on 12 March 2015. He was also found to have contravened s 494 on 11 March 2015: [2018] FCA 42 at [285]. In entering the site on 11 March 2015, it was concluded that he did so “knowing that he had no right of entry”: [2018] FCA 42 at [159]. Contrary to Mr Collier’s professed concerns as to safety, it has been concluded that he entered the site “not out of any genuine concern as to safety but for the purpose of being as disruptive as possible of the activities then being undertaken and proposed to be undertaken by those working on site”: [2018] FCA 42 at [187]. Mr Collier denied the contravention of s 494 on 11 March 2015.

103    Mr Collier also admitted that he contravened s 343 on 11 March 2015. It has been concluded that two cars registered in the name of the CFMEU had been “deliberately parked in the driveway for the purpose of preventing the concrete truck on Site from leaving and for the purpose of preventing concrete trucks from gaining access to the Site”: [2018] FCA 42 at [182]. Mr Collier was observed exiting the driver’s seat of one of the two vehicles: [2018] FCA 42 at [173]. Mr Collier’s Third Amended Defence also admits that he parked a vehicle in such a way as to prevent the access of concrete trucks to the Rhodes Site. The parking of the cars in that manner was described as being “in contemptuous disregard of the rights of the occupier to gain entry to its Site”: [2018] FCA 42 at [182]. Mr Collier was also said to have driven a vehicle very close to two persons and when told that he was “very close to hitting [them]” he responded: “[y]ou’re just a piece of shit”: [2018] FCA 42 at [179]. Mr Collier’s conduct itself has been characterised as showing “a total contempt for any requirement that he must have a lawful right to enter premises” and as displaying “a belligerence on Site to those in lawful occupation of the premises”: [2018] FCA 42 at [289]. It should nevertheless be noted that while the conduct on 12 March 2015 was intrusive of the rights of the occupier, Mr Collier left the Wolli Creek Site when told to do so: [2018] FCA 42 at [234].

104    It was submitted on behalf of Mr Collier that the contraventions on 11 and 12 March 2015 “are based on the same interrelated factual elements being the attending at the site without an entry permit”. Although there may be some common elements, the contraventions on 11 and 12 March 2015 should each attract separate penalties. The submission, with respect, seriously either misstates or fails to address the very different conduct pursued by Mr Collier, in particular on 11 March 2015. It is not possible, with respect, to characterise the conduct of Mr Collier on 11 March and again on 12 March as but a single course of conduct or but a single contravention: cf. The Australian Paper Case (No 2) [2017] FCA 367 at [3] to [4] per Jessup J. The conduct on those two days was not the same “particular conduct” for the purposes of s 556.

105    Mr Collier has been found in a previous case to have contravened the Fair Work Act on five occasions: ABCC v Parker [2017] FCA 564, (2017) 266 IR 340; ABCC v Parker (No 2) [2017] FCA 1082, (2017) 270 IR 165. In imposing penalties in that case, it may be observed that Mr Collier was then said to have “exhibited a significant degree of contempt for those administering the Fair Work Act”: ABCC v Parker (No 2) [2017] FCA 1082 at [44], (2017) 270 IR at 179.

106    A letter dated 12 April 2018 from Mr Michael Buchan, the Secretary of the CFMEU WA confirms “that Mr Collier resigned from the Construction, Forestry, Mining and Energy Union, Construction and General Division, Western Australian Divisional Branch effect as of 1 February 2018, as he relocated back to his home state”. A further letter dated 2 May 2018 from Mr Dave Noonan, the National Secretary of the CFMEU Construction and General Division records that Mr Collier “is not employed by and is not an official of any branch of the CFMEU.” He remains a member of the Union.

107    A penalty in total in the sum of $20,500 is considered appropriate given, in particular:

    the fact that Mr Collier was sent to the Rhodes Site on 11 March 2015 for the purpose of securing access to that site as soon as possible and in order to disrupt the scheduled concrete pour and did in fact attend at that site for that purpose;

    the character of the conduct pursued by Mr Collier on 11 March 2015 and the disruption caused on that day;

    the loss occasioned by reason of the concrete pour being disrupted on 11 March 2015, the removal of the concrete and the repouring of the slab;

    the fact that his conduct on 12 March 2015 was far less confrontational and intrusive than that pursued on the previous day;

    his denial of the alleged contravention of s 494 on 11 March 2015 and the rejection of his professed concerns as to safety; and

    his prior contraventions.

The observations made in respect to Mr Razaghi’s involvement in the loss occasioned by the conduct on 11 March 2015 need not be again repeated in respect to Mr Collier. And again, consideration has been given to the need to ensure that the penalty imposed upon Mr Collier is comparable to that imposed on the other individual Respondents on 11 and 12 March 2015 and a comparison between the disruptive consequences of his actions on 11 March 2015 and the threat made by Mr Kera on 5 June 2014.

108    A penalty in the overall sum of $20,500 is considered appropriate. Given the other considerations taken into account, it is considered that there should only be a minimal adjustment to the penalty which would otherwise have been imposed. That reduction takes into account a consideration of the fact that Mr Collier on 1 June 2017 did in fact admit the contravention of s 343 on 11 March 2015 (although only admitting some of the conduct alleged to give rise to the contravention) and the contravention of s 494 on 12 March 2015.

Ben Garvey

109    The maximum penalty that could potentially have been imposed in respect to Mr Garvey and the penalty in fact imposed is as follows:

110    The allegation ultimately made against Mr Garvey was that he entered the Rhodes Site on 11 March 2015 and “acted in an improper manner” contrary to s 500 of the Fair Work Act. His involvement was focussed upon his conduct on the deck where the concrete pour was to take place. His conduct involved telling workers to “[g]et off the slab” and that “[t]he railing is loose and unsafe”: [2018] FCA 42 at [223] to [225]. It was concluded that he “deliberately kicked the handrail until it fell”: [2018] FCA 42 at [226]. The relevance of the observations in respect to Mr Razaghi’s involvement in the loss occasioned by the conduct on 11 March 2015 need not be again repeated in respect to Mr Garvey.

111    Mr Garvey admitted the contravention. An affidavit which had been filed by Mr Garvey in respect to the contravention was, accordingly, not then read.

112    Mr Garvey has not been found to have contravened the Fair Work Act on any other occasion.

113    The Commissioner does not seek the imposition of any penalty. Not surprisingly, Counsel on behalf of Mr Garvey supported this position, relying on:

    his being only “briefly involved” as an official of the CFMEU;

    the fact that he had only been employed by the CFMEU for six months and was “monitored and directed closely by his supervisors”;

    the fact that he only continued to be employed by the CFMEU after the contravention for a further period of seven months and that he does not intend to seek any re-employment with the CFMEU and does not intend to hold a right of entry permit in the future;

    his admission on 2 June 2017 of the contravention “[u]pon refinement of the allegations”; and

    his expression of “contrition and remorse”.

Counsel on his behalf submitted that there “is no need for specific deterrence.”

114    Notwithstanding the fact that the Commissioner pressed for no penalty to be imposed in respect to Mr Garvey and the submissions made by Counsel on Mr Garvey’s behalf, it is nevertheless concluded that a penalty should be imposed to reflect the contribution made by Mr Garvey to the disruption of work on 11 March 2015 and the deliberateness of his conduct.

115    The assessment process was complicated by the fact that there was agreement between the Commissioner and Mr Garvey as to the penalty to be imposed at the time he admitted the reformulated allegation in respect to s 500. Prior allegations as to a contravention of s 343 were then abandoned. Although the Court was informed on 2 June 2017 that there would be a joint position on penalty, there was then no disclosure that the joint position was for the imposition of no penalty (although the prospect of no penalty was foreshadowed). When Counsel for Mr Garvey was informed during the course of the present penalty hearing that the imposition of a penalty was nevertheless being considered, Counsel referred to the following observations of Lander J in Standen v Feehan (No 2) [2008] FCA 1574, (2008) 177 IR 276 at 278 made in the context of considering the Court’s role in fixing penalties where the parties had agreed a range of penalties:

[11] … the regulator should always justify any discounted penalty to which the regulator has agreed. Lastly, if the Court is of the opinion that the penalty is inappropriate, it may then be appropriate to allow the parties to withdraw their consent to the proposed orders and for the matter to proceed as a contested hearing.

Counsel was given an opportunity to consider whether he wished to make an application to withdraw the admission made as to a contravention of s 500. No such application was made.

116    Notwithstanding the agreement between the Commissioner and Mr Garvey that no penalty should be imposed, and notwithstanding the fact that such an agreement was made at the point of time when the allegations made against Mr Garvey were narrowed to that of a contravention of s 500 by “acting in an improper manner” rather than also “intentionally hindering or obstructing another person”, it is nevertheless respectfully considered that there remains a need to impose a penalty.

117    Given the fact that Mr Garvey is no longer involved with the CFMEU, the need for specific deterrence is largely removed; but there remains a real need for general deterrence. The “objective nature and seriousness” (cf. ABCC v CFMEU [2017] FCAFC 113 at [102] to [103], (2017) 254 FCR 68 at 89 per Dowsett, Greenwood and Wigney JJ) of Mr Garvey’s contravening conduct warrants the penalty imposed.

118    Subject to adjustment to reflect the cooperation extended by Mr Garvey, his contrition and to ensure parity with the other individual Respondents, it is considered that the appropriate penalty is $4,000. To reflect these considerations, however, the penalty should be reduced to $2,500.

Benito Manna

119    The maximum penalty that could potentially have been imposed in respect to Mr Manna and the penalty in fact imposed is as follows:

120    The allegation made against Mr Manna was that in respect to the events on 11 March 2015 at the Rhodes Site he, together with Mr Razaghi, was “knowingly concerned in or party to the contravention” of Mr Collier. Together with Mr Razaghi, it was concluded that both “knew by his conduct Mr Collier was ostensibly seeking to exercise a State or Territory OHS right and further knew that Mr Collier did not hold an entry permit”: [2018] FCA 42 at [294]. It was also concluded that when seeking entry to the Rhodes Site on 11 March 2015 neither Mr Manna nor Mr Razaghi “had any genuine concern as to safety” and that although Mr Razaghi had “taken a more prominent role in the events of that morning, Mr Manna cannot hide behind the conduct of another”: [2018] FCA 42 at [315].

121    On behalf of Mr Manna it was submitted that in accordance with the need for there to be parity in the quantum of penalties imposed he (and Mr Razaghi) “should be dealt with in a similar way to [Mr] Garvey for the purposes of determining penalty”. The forensic objective in making that submission was again to align Mr Manna with the Commissioner’s submission that there should be no penalty imposed upon Mr Garvey. In some respects, the conduct of Mr Garvey was worse than that of Mr Manna; in other respects, the conduct of Mr Manna and the rejection of his professed reliance upon concerns as to safety when entering the site may be regarded as more egregious.

122    The relevance of the observations in respect to Mr Razaghi’s involvement in the loss occasioned by the conduct on 11 March 2015 need not be again repeated in respect to Mr Manna.

123    Mr Manna has not been found to have been involved in any other contravention of the Fair Work Act.

124    A penalty in the sum of $6,500 in such circumstances is considered appropriate by reason of:

    the participation by Mr Manna (using unlawful means) in the CFMEU campaign to secure site allowances, albeit a level of participation which was less “prominent” than that of Mr Razaghi ([2018] FCA 42 at [92]);

    the knowledge that Mr Manna had in respect to the conduct of Mr Collier;

    the absence of any genuine concern as to safety;

    the loss occasioned by the conduct on 11 March 2015; and

    a comparative assessment of the involvement of Mr Manna and Mr Razaghi – and also the conduct of Mr Garvey.

125    There should only be a minimum adjustment to the penalty otherwise considered appropriate, namely $6,500. The penalty to be imposed should be $6,000.

The CFMEU

126    The maximum penalty to be imposed in respect to each contravention that has been found to have been made out and the penalty which would have been imposed upon the CFMEU in respect to each contravention but for the operation of s 556 and the evaluative adjustment of such penalties in order to ensure that they ae not disproportionate or unfair or oppressive and the penalties in fact imposed may be summarised as follows:

127    Of particular relevance to the present process of “instinctive synthesis” being undertaken to assess the appropriate penalty to be imposed upon the CFMEU are at least three considerations, namely:

    the prior history that the CFMEU has established over almost 20 years of being persistently and repeatedly found to have contravened industrial legislation;

    the size and nature of the CFMEU; and

    the need for the penalties to be imposed by reference to the facts of the present case and to be in an amount sufficient to act as a specific deterrent.

128    The repeated occasions upon which this Court has been called upon to impose penalties upon the CFMEU is truly worrying. By reference to the evidence in the present proceeding, it emerges that the CFMEU has been found to have contravened industrial legislation in 118 different cases (some involving multiple contraventions). Those contraventions have extended over the period from January 1999 to June 2016 and have involved contraventions of the Fair Work Act, the Building and Construction Industry Improvement Act 2005 (Cth) and the Workplace Relations Act. Considerable care nevertheless needs to be taken, as properly submitted on behalf of the CFMEU, that the penalty now imposed upon the CFMEU does not penalise it “again for their past behaviour nor should that behaviour lead to penalties that are disproportionate to the nature and circumstances of the relevant contraventions”.

129    The CFMEU record of contraventions was described by one Judge of this Court (White J) in 2014 as being “dismal”: Director of Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432 at [76], (2014) 146 ALD 75 at 87. That description was repeated by the same Judge two years later as “just as apt now as it was then”: Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 at [33]. That same Judge has more recently described the Union’s “record of contraventions of industrial legislation” as “appalling”: Australian Building and Construction Commissioner v Gava [2018] FCA 1480 at [71]. The CFMEU has also been characterised by another Judge as a “recidivist” (Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 226 at [63] per Tracey J) and by yet other Judges as a “serial recidivist” (Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53 at [91], (2017) 249 FCR 458 at 479 per Dowsett and Rares JJ. See also: The Enoggera Barracks Case [2018] FCA 263 at [64] per Rangiah J). With reference to a then current schedule of prior cases involving earlier contraventions by the CFMEU, Dowsett, Greenwood and Wigney JJ in ABCC v CFMEU [2017] FCAFC 113 at [158], (2017) 254 FCR 68 at 101 have observed that the schedule “reveal[ed] a lamentable, if not disgraceful, record of deliberately flouting industrial laws.”

130    In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 226 at [30], Tracey J referred to the size and nature of an organisation as assuming relevance when assessing the quantum of a penalty to be imposed.

131    The CFMEU is an organisation of considerable size, influence and resources. Without attempting to be exhaustive, the evidence in the present case exposes (inter alia) the following:

    during the three month period to March 2017 and the 2016 calendar year, the NSW Divisional Branch of the CFMEU Construction and General Division received over $2.5 million and over $9.8 million in revenue for membership subscriptions (respectively);

    the National Office of the Construction and General Division of the CFMEU had net assets of $5,780,769 as at 31 March 2017; and

    there have been a number of examples of funds passing between branches and divisions of the CFMEU, some such transfers amounting to several millions of dollars.

And (potentially) disturbingly:

    the financial statements of the National Office of the CFMEU record no payment of any penalty for the 2015 and 2016 calendar years, notwithstanding the fact that for those two years the CFMEU had been ordered to pay over $1.7 million in penalties.

It is against this background that the process of assessing the relevant penalties in the present proceeding is to be undertaken.

132    The liability assumed by the CFMEU in respect to the events occurring on 5 June 2014 arises by reason of:

    the conduct of Mr Taylor at the meeting on 5 June 2014 which gave rise to his contraventions of ss 340 and 343; and

    the conduct of Mr Kera in sending his text message on the afternoon of 5 June 2014 which gave rise to his contraventions of ss 340 and 343.

Considered in isolation, the appropriate penalty to be imposed for the contraventions of s 343 would each have been $51,000; the appropriate penalty for the contraventions of s 340 would have been $25,000.

133    But the liability of the CFMEU for the conduct of Mr Taylor and Mr Kera for the contraventions of ss 340 and 343 in each case again arises out of essentially the same conduct. Section 556 is thus enlivened and precludes the imposition of two penalties as against the CFMEU for the conduct of Mr Taylor and also precludes the imposition of two penalties against the CFMEU for the conduct of Mr Kera. The same conclusion is again reached in respect to the CFMEU that the “primary penalty” should be imposed in respect to the s 343 contraventions. Section 556 precludes the imposition of two penalties on the CFMEU as it does on Mr Taylor and Mr Kera. The term “person” in s 556 should not be construed as confined to natural persons.

134    Separate consideration has been given to whether a penalty of $51,000 for each of the two contraventions in respect of the 5 June 2015 conduct is unfair or oppressive or disproportionate. Viewed differently, consideration has been given to whether the imposition of two penalties each of $51,000, namely a total penalty in aggregate of $102,000, should be adjusted. Irrespective of any application of s 556, it would have been concluded that the penalties for the contraventions of s 340 should have been reduced to $25,000 and that the penalties for the contraventions of s 343 should have been reduced to $36,000. As was the case with both Mr Taylor and Mr Kera, the penalties considered appropriate to their individual contraventions likewise did not attract the maximum penalty.

135    Considered in isolation from s 556, the penalties that would have been imposed upon the CFMEU by reason of the conduct of Mr Taylor would thus have been $25,000 and $36,000. When s 556 is called into play, it is the “primary penalty” alone which can be imposed. The penalties thus imposed upon the CFMEU for the liability it assumes for the conduct of Messrs Taylor and Kera on 5 June 2014 are thus $36,000 for each of the contraventions of s 343.

136    The liability of the CFMEU for the events occurring on 11 and 12 March 2015 arises by reason of the conduct of:

    Messrs Razaghi, Manna and Garvey on 11 March 2015; and

    Mr Collier on 11 and 12 March 2015.

If attention is initially focussed on the liability of the CFMEU arising out of the conduct of Messrs Razaghi, Manna and Garvey, it is concluded that the conduct of those three individuals is best characterised as but a single contravention by the Union and that an appropriate penalty would be $35,000. So much follows, it is respectfully considered, by reason of the egregious nature of the conduct each of those individuals pursued on that date. Just as it has been concluded that separate penalties should be imposed upon Mr Collier in respect to the two contraventions on 11 March 2015 and that a further separate penalty should be imposed in respect to his subsequent contravention of s 494 on 12 March 2015, it is likewise concluded that separate penalties should be imposed on the CFMEU. Subject to further consideration, appropriate penalties for each of these three contraventions would be $35,000, $35,000 and $20,000.

137    Section 556, it is concluded, is not enlivened in respect to any of the liability of the CFMEU for conduct that occurred on 11 or 12 March 2015. The conduct of Messrs Razaghi, Manna and Garvey was obviously separate and distinction from the conduct of Mr Collier. The conduct of Mr Collier on 11 March 2015 that gave rise to his contraventions of ss 343 and 494 was also founded upon separate and distinct conduct. His liability for the contravention of s 494 on 12 March 2015 has also been found to be separate and distinct from his conduct on the previous day.

138    The quantum of the CFMEU penalties otherwise considered appropriate has been revisited with a view to ensuring that each of those penalties considered ether in isolation or cumulatively are appropriate. The penalty otherwise considered appropriate for the CFMEU’s contravention of s 500 arising from the conduct of Messrs Razaghi, Manna and Garvey on 11 March 2015 should be reduced to $30,000. The two penalties arising by reason of the conduct of Mr Collier on 11 March 2015 each in the sum of $35,000 should also be reduced to $30,000 to a cumulative total of $60,000 in respect of the CFMEU’s liability arising from Mr Collier’s conduct on that day. The penalty arising by reason of Mr Collier’s conduct on 12 March 2015 should be reduced to $15,000.

139    No question arises of imposing upon the CFMEU the maximum penalty in respect to each of the four species of conduct engaged in on 11 and 12 March 2015 – namely, $204,000. The penalty otherwise considered appropriate – namely a total of $125,000 – has thus been further considered to ensure that it is an appropriate penalty in its totality. So considered, it is respectfully considered that each of the proposed reductions is warranted and would result in a total penalty of $105,000. Albeit a figure which is ultimate “instinctively intuitive”, a penalty in that sum is warranted.

140    In respect of the conduct on 16 March 2015, it is considered that a penalty in the sum of $35,000 is appropriate. In respect of the conduct on 17 March 2015, a penalty in the sum of $25,000 is considered appropriate. These penalties are not considered unfair or disproportionate and, accordingly, should not be reduced.

141    In assessing the quantum of penalties to be imposed upon the CFMEU, particular attention has been given on the facts of the present case to:

    the nature and circumstances of the contravening conduct, including the flagrant disregard for the rights of occupiers exhibited by (for example) Mr Collier on 11 March 2015 and the coordinated assembly of union officials and employees at both the Rhodes and Wolli Creek Sites; and

    the coordinated and persistent pursuit by the officers of the CFMEU of the campaign objective of securing site allowances by conduct that contravened the Fair Work Act, including (in particular) recourse to coercive conduct (s 343). The contravening conduct and the pursuit of the campaign by contravening conduct, it is to be recalled, only came to an end on 17 March 2017 with the meeting between Messrs Howlin and Parker. On that date, and by reason of the prior contravening conduct, the CFMEU achieved its objective and industrial action thereafter ceased: [2018] FCA 42 at [264] to [271]. Prior to agreement being reached to yield to the demands of the CFMEU, there was conduct whereby threats were made to “come after” those subcontractors who opposed the CFMEU’s wishes and to “smash [their] jobs”. Although the CFMEU, and its members, are entitled to pursue any legitimate industrial campaign as is seen fit, the pursuit of a campaign cannot involve – as on the facts of the present case – repeated contraventions of the Fair Work Act over a protracted period.

Also of concern are the following more broadly expressed considerations:

    the considerable publicity that was given by the CFMEU to their campaign by the articles published in the CFMEU (Construction & General Division) NSW Branch publication, UNITY, over the period from December 2014 to August 2015;

    the size and nature of the CFMEU, including its not inconsiderable financial resources; and

    the long history of the CFMEU and its officers and employees of engaging in conduct that contravenes industrial legislation.

The pulling together of some of the “threads” relevant to the campaign pursued by the CFMEU has previously been addressed: [2018] FCA 42 at [274].

142    No conclusion is open, with respect, other than that the CFMEU has the financial resources available to it to continue paying all such penalties as may be ordered by this Court and that all such penalties are simply regarded by the CFMEU as an “acceptable cost of doing business”: cf. Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20 at [62] and [68], (2012) 287 ALR 249 at 265 to 266 per Keane CJ, Finn and Gilmour JJ. The penalty imposed, it is respectfully considered, is far from “oppressive”: cf. ABCC v CFMEU [2017] FCAFC 113 at [107], (2017) 254 FCR 68 at 90 per Dowsett, Greenwood and Wigney JJ.

143    The final step in respect to the CFMEU, as with each of the other Respondents, is to consider the fairness and appropriateness of the totality of the penalties imposed. In the case of the CFMEU, a total penalty in the sum of $237,000 is not considered to be anything other than “just and appropriate” and is not “excessive”: ABCC v CFMEU [2017] FCAFC 113 at [118], (2017) 254 FCR 68 at 90 per Dowsett, Greenwood and Wigney JJ.

144    The penalties imposed in the present case – it should be expressly noted – have been imposed not by reference to the past conduct of the CFMEU which has previously attracted penalties for past unlawful conduct; such penalties as are now imposed have been imposed by reference to the fact that such conduct as is presently under scrutiny evidences a continuing commitment on the part of the CFMEU to pursue its industrial objectives by unlawful means and a continuing commitment to pay such penalties as are imposed as but the “cost of doing business”. Particularly is this so in respect to such conduct as is presently under scrutiny which involves an unlawful “intent to coerce” others to yield to the demands of the CFMEU.

145    In imposing such penalties as have been imposed, it should be stressed that it is no part of the function of this Court to express any view as to the adequacy of those penalties as have been prescribed by the Legislature. The function of this Court is simply to impose such penalties as it considers is appropriate by reference to the facts and circumstances of each individual case and to do so by reference to the law as prescribed by the Legislature. Any perceived inadequacy in the penalties prescribed is a matter for the Legislature alone to address.

AN ORDER FOR ADVERTISING?

146    The final question to be resolved is whether the Court:

    has power to make an order for advertising of the fact that contraventions have been found to have been made out and penalties imposed;

and, if so:

    whether such an order should be made.

If both of these matters are resolved in favour of making such an order, the form of advertisement to be published has not attracted much division between the parties. The only real division is that the Respondents contend that the advertisement should not name the “individuals who no longer work for the” CFMEU.

147    The power to make an order for advertising is to be found, it is considered, in s 545 of the Fair Work Act.

148    Section 545 provides in relevant part as follows:

Orders that can be made by particular courts

Federal Court and Federal Circuit Court

(1)    The Federal Court … may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

(2)    Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following:

(a)    an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;

…

That section stands in contrast to s 546, which provides in part as follows:

Pecuniary penalty orders

(1)    The Federal Court … may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.

Both provisions received the attention of the High Court in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3, (2018) 273 IR 211.

149    Section 545, it was there concluded, was very much a source of power to make “preventative, remedial and compensatory orders”. Keane, Nettle and Gordon JJ there concluded (in part) as follows (at 237):

The correct construction of s 545(1)

(i)    Preventative, remedial and compensatory orders

[103]    … the starting point of the process must be the text of s 545(1) read in the context of the Fair Work Act as a whole and, in particular, in light of s 546. So approached, the first and most immediate point of significance is the breadth of the terms in which s 545(1) empowers the court to make any order the court considers appropriate. What is “appropriate” for the purpose of s 545(1) falls to be determined in light of the purpose of the section and is not to be artificially limited. As the ABCC submitted, such broad terms of empowerment are constrained only by limitations that are strictly required by the language and purpose of the section. To adopt and adapt the language of Flick J in Transport Workers’ Union of Australia (NSW Branch) v No Fuss Liquid Waste Pty Ltd [[2011] FCA 982], the object and purpose of the power under s 545(1) is quite separate and distinct from that of the power under s 546 to order that a contravener pay a pecuniary penalty.

[104]    The second point of significance is contextual, and it points the other way. It will be observed that all of the example orders listed in s 545(2) are directed to preventing the occurrence of an apprehended contravention, remedying the effects of a committed contravention or compensating victims of a contravention for the consequences of the contravention. None of the example orders is penal. That suggests that the types of orders that may be regarded as “appropriate” within the meaning of s 545(1) are limited to preventative, remedial or compensatory orders, or at least do not include penal orders.

[105]    The third point dovetails with the second. As was earlier set out, the chapeau to s 545(2) expressly provides that the sub-section does not limit s 545(1).

(Footnotes omitted, emphasis in original.)

In resolving the question as to whether an order may be made pursuant to s 545 that a union not indemnify a person who has been found to have contravened a provision of the Fair Work Act and ordered to pay a penalty, their Honours continued on to pose the question (at 239):

(ii)    Nature of a non-indemnification order

[111]    The question then is whether a non-indemnification order of the kind in issue is a preventative, remedial or compensatory order within the ambit of s 545(1) or whether it is to be conceived of as penal and thus beyond the ambit of the power conferred by that provision.

Their Honours concluded that s 545 would not support the making of a non-indemnification order: [2018] HCA 3 at [114], (2018) 273 IR 211 at 240.

150    However, their Honours further concluded that s 546 was the source of an express power to make an order that a person pay a pecuniary penalty and the source of an implied power to order that that person pay the penalty personally. Their Honours thus concluded (at 240 to 242):

Implied power under s 546

(i)    The extent of the power

[115]    Section 546 expressly confers power on the court to make an order that a person pay a pecuniary penalty. From that express conferral of power arises an implied power to make such other orders as are necessary for or facilitative of the type of orders expressly provided for. For the reasons that follow, that implied power under s 546 includes power to make an order that a contravener pay a pecuniary penalty personally and not seek or accept indemnity from a co-contravener, otherwise known as a “personal payment order”.

[116]    As has been observed, the principal object of an order that a person pay a pecuniary penalty under s 546 is deterrence … Ultimately, if a penalty is devoid of sting or burden, it may not have much, if any, specific or general deterrent effect, and so it will be unlikely, or at least less likely, to achieve the specific and general deterrent effects that are the raison d’être of its imposition.

…

[118]    Certainly, the power expressly conferred by s 546 is limited to making an order that a person “pay a pecuniary penalty”. But, as has been observed, the express grant of power carries with it implied power to do everything necessary for the effective exercise of the power to impose a pecuniary penalty; and thus implied power to make such further orders as are reasonably required for, or legally ancillary to, the accomplishment of the deterrent effect that the penalty is calculated to achieve. …

[119]    Parity of reasoning dictates that s 546 also imports implied power to achieve the effect which a pecuniary penalty is calculated to achieve by ordering that a contravener pay the penalty personally …

[120]    Given that s 546 expressly empowers the court to order a specific person to pay a pecuniary penalty, it is no stretch to accept that there is power in s 546 to make orders designed to ensure that the person against whom the order is made cannot avoid the incidence of the penalty. It is to take too narrow a view of the purpose of s 546 to regard the provision as being concerned with no more than that an amount of money be paid by someone in discharge of a debt created by order of the court. Section 546 is not about the creation and collection of debts; it is about penalising a contravention of the law. It is to take too narrow a view of the extent of the power conferred by s 546 to deny that it extends to the making of orders designed to ensure that a particular person cannot defeat the purpose of an order that the person pay the penalty imposed on him or her.

(Footnotes omitted.)

An order for the publication of an advertisement would not seem to easily fit within the ambit of the power conferred by s 546, as construed by their Honours.

151    But s 545, it is considered, is a sufficient source of power to order advertising.

152    The purpose achieved by making such an order is to inform (inter alia) those members of the building industry engaged in construction work of a like kind to that in the present proceeding of the outcome of the proceeding and to inform them of the kind of conduct which constitutes a contravention of the Fair Work Act. It also achieves the purpose of informing members of the Respondent Union of the kind of conduct that has been held to constitute a contravention. The making of such an order, it is considered, falls naturally within the ambit of the power conferred by s 545 to “make any order the court considers appropriate” in respect to the contraventions. If necessary, it is further considered that such an order can accurately be characterised as “preventative”: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3 at [104], (2018) 273 IR 211 at 237 per Keane, Nettle and Gordon JJ. Advertisements of the kind presently envisaged will hopefully go some way to “preventing” further like contraventions of the Fair Work Act. At the very least, advertisements may cause individual union members to pause before pursuing unlawful conduct. Especially is that now the case since the High Court has upheld the power of the Court to make, in an appropriate case, a “personal payment order”.

153    The making of an order for advertising is not considered to be in the nature of a further penalty or in the nature of simply advertising a “win” for the Commissioner.

154    Some support for both the existence of a power to make such an order and the appropriateness of making such an order may be gleaned from Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 1387, (1999) 95 FCR 114. In making an order for the publication of an advertisement in a proceeding arising under the former Trade Practices Act, French J (as his Honour then was) concluded (at 133):

[49]    In my opinion there is power to make orders under s 80 which bring the outcome of the proceedings to the attention of members of REIWA and to the public as consumers. It is important that such advertisements are seen to do more than merely announce a “win” for the ACCC and the contrition of the respondent. Such advertisements in cases involving contraventions of Pt IV are within the power conferred by s 80 if they are directed to informing the relevant markets of the outcome of the litigation so that those in the market have at least a broad understanding of the ways in which the contravenors have had to change their conduct. This will at least alert those in the markets to question or inquire about the lawfulness of conduct in the future which may seem to contravene the Act and/or breach the injunctions which have been granted. In this way, public advertising as proposed may aid in the enforcement of the primary orders and the prevention of the repetition of the contravening conduct. In so saying, it is not intended to assert any exhaustive principle upon which the making of such orders under s 80 can be justified. It is doubtful, however, that the Court is entitled to make orders for such wide purposes as the general education of the public about the Act and its enforcement. In my opinion the proposed notices in the REIWA Review and REIWA News and the proposed advertisement in The West Australian newspaper are appropriately ancillary to the primary relief that is sought and are within power.

Section 80 of the Trade Practices Act conferred power to grant injunctive relief. See also: Australian Competition and Consumer Commission v Aveling Homes Pty Ltd [2017] FCA 1470 at [58] to [59] per McKerracher J.

155    Rejected is a submission advanced on behalf of the Respondents that the terms of s 80 of the Trade Practices Act and s 545 of the Fair Work Act are “significantly different” and that s 80 was conferred in terms “significantly broader” than s 545. Full effect should be given to the wide terms in which s 545, and in particular s 545(2), is expressed. Also rejected is a submission advanced on behalf of the Respondents that s 545 “is directed at preventing contraventions by way of injunction or addressing or remedying the effects of a contravention by order of compensation or reinstatement”. Nothing in the terms employed in s 545, and nothing in the judgments of their Honours in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3, (2018) 273 IR 211 support such a confined interpretation of s 545.

156    Like observations were expressed in ABCC v Parker (No 2) [2017] FCA 1082 at [80] to [81], (2017) 270 IR 165 at 185 to 186, albeit with greater reliance there being placed upon the objective of securing deterrence. There has, however, been an appeal from that decision. On appeal, both the existence of the power to make the order there made and the exercise of discretion to make the order were under challenge. A Full Court has heard the appeal but has reserved its decision.

157    Also rejected is a submission advanced on behalf of the Respondents that the making of an order for advertising should be refused in the exercise of the Court’s discretion, primarily by reason of the passage of time since the events the subject of the proceeding in 2014 and 2015. Although that passage of time is a period of about four years, the contravening conduct that has been the subject of the proceedings, and the need to bring that to the attention of those concerned in the building industry and union members, continues.

CONCLUSIONS

158    The penalties which have been imposed in respect to each of the Respondents in the present proceeding by reason of their contraventions of the Fair Work Act have been imposed by reference to the general principles applicable in respect to the quantification of penalties, including (in particular) the need for both general and specific deterrence.

159    An order should be made for advertising the fact that contraventions have been made out and penalties imposed substantially in accordance with those proposed by the Commissioner.

THE COURT ORDERS THAT:

The parties are to bring in Short Minutes of Orders to give effect to these reasons within fourteen days.

Associate:

Dated:    18 October 2018

SCHEDULE OF PARTIES