FEDERAL COURT OF AUSTRALIA
Fair Work Ombudsman v Maritime Union of Australia (No 2)  FCA 814; (2015) 252 IR 101
WAD 483 of 2015
TRACEY, BUCHANAN AND BROMBERG JJ
Date of judgment:
INDUSTRIAL LAW – parties negotiating enterprise agreement – strike action taken – some employees continued to work during strike action – appellants published a poster naming five such employees “scabs” – primary judge found appellants contravened s 346(c) of the Fair Work Act 2009 (Cth) (“FW Act”) – whether primary judge erred in finding the employees were prejudiced, directly or indirectly, in their employment – findings made by primary judge provide more than adequate support that prejudice occurred in their employment – whether compensation awarded by primary judge failed to differentiate between the employees – whether compensation was manifestly excessive – no error in compensation awarded by primary judge – whether penalties imposed by primary judge were manifestly excessive, involving “double punishment” – no error in penalties imposed by primary judge
Occupational Health and Safety Act 1985 (Vic)
Sentencing Act 1991 (Vic), ss 85A, 85B, 85H(1)
Trade Practices Act 1974 (Cth), s 52
Workplace Relations Act 1996 (Cth), s 298K(1)
Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526
BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2013) 219 FCR 245
Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539
Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144
Cameron v Warakurna Community Inc  FCA 1260
Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93
Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) (2012) 228 IR 195
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243
Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461
Construction, Forestry, Mining and Energy Union v Stuart-Mahoney  FCA 56
Director of Public Prosecutions v Energy Brix Australia Corporation Pty Ltd (2006) 14 VR 345
Director of Public Prosecutions v Esso Australia Pty Limited  VSC 513
Director of Public Prosecutions v Esso Australia Pty Ltd  VSC 222
Director of Public Prosecutions v Esso Australia Pty Ltd  VSC 232
Evans v Alto Parts Pty Ltd  FCA 601
Kraus v Menzie  FCA 3
Lee v Smith  FMCA 59
Letter Carriers v Austin, 418 US 264 (1974)
Linn v Plant Guard Workers, 383 US 53 (1966)
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383
Nikolich v Goldman Sachs J B Were Services Pty Ltd  FCA 784
O’Brien v Dunsdon (1965) 39 ALJR 78
Old Dominion Branch No. 496, National Association of Letter Carriers v Austin, 418 US 264 (1974)
Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia (1998) 195 CLR 1
Pearce v The Queen (1998) 194 CLR 610
Poniatowska v Hickinbotham  FCA 680
Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244
Quinn v Overland (2010) 199 IR 40
RailPro Services Pty Ltd v Flavel  FCA 504
Richardson v Oracle Corp Australia Pty Ltd  FCA 102; (2013) 232 IR 31
Richardson v Oracle Corporation Australia Pty Ltd (2014) 223 FCR 334
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327
Sayed v Construction, Forestry, Mining and Energy Union (2015) 327 ALR 460
Swan v Monash Law Book Co-operative (2013) 235 IR 63
Ucchino v Acorp Pty Limited  FMCA 9
Tame v New South Wales (2002) 211 CLR 317
Toben v Jones (2012) 298 ALR 203
Walker v Citigroup Global Markets Australia Pty Ltd (2006) 233 ALR 687
Willett v Victoria  VSCA 76
Lloyd T, The Trial of the Boot & Shoemakers of Philadelphia, on an Indictment for a Combination and Conspiracy to Raise their Wages (B Graves, Philadelphia, 1806)
Luntz H, Assessment of Damages for Personal Injury and Death (3rd ed., Butterworths, 1990)
Fair Work Division
National Practice Area:
Employment & Industrial Relations
Number of paragraphs:
Solicitor for the Appellants:
W G McNally Jones Staff
Counsel for the Respondent:
Mr J Bourke QC with Ms R Sweet
Solicitor for the Respondent:
Fair Work Ombudsman
DATE OF ORDER:
THE COURT ORDERS THAT:
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
TRACEY and BUCHANAN JJ:
1 It is sometimes thought, in the traditional union movement at least, that to label someone a scab is the worst insult that can be given. At a minimum, it is a call to shame and ostracise that person. It signifies that they have been guilty of unforgiveable, and unredeemable, treachery which will blight their reputation forever.
2 The conduct of the appellants in the present case invoked those traditional aims. It involved the publication and circulation of a poster accusing five persons of being scabs. The persons named as scabs were employed by the Fremantle Port Authority as vessel traffic service officers or as small craft masters.
3 The facts and circumstances are set out in the judgment of the primary judge on liability (Fair Work Ombudsman v Maritime Union of Australia  FCA 440; (2014) 243 IR 312) (“the liability judgment”) and the additional matters relevant to awards of compensation and the imposition of penalties are set out in a separate judgment (Fair Work Ombudsman v Maritime Union of Australia (No 2)  FCA 814; (2015) 252 IR 101) (“the penalty judgment”), both of which judgments are the subject of the present appeal.
4 In late 2011, the first appellant (the MUA) through the second appellant (Mr William Tracey) was engaged in negotiations with the Fremantle Port Authority for an enterprise bargaining agreement to cover vessel traffic service officers and small craft masters.
5 The primary judge recorded the following matters in the liability judgment:
“13 In October 2011, the VTSOs and small craft masters took part in a ballot as to whether to take protective action in relation to the 2011 negotiations for a proposed enterprise bargaining agreement with the FPA.
14 On 27 October 2011, the ballot was declared in favour of taking protected action in relation to the 2011 enterprise bargaining agreement. There were four votes against the motion. Mr Watson was one of the employees who voted against going on strike. He told other employees that he had done so. Mr Daly also voted against going on strike and also told other employees he had done so.
16 On 23 November 2011, Mr Daly resigned from the MUA and also withdrew his authority for Mr Tracey to continue to represent him as his bargaining agent. When Mr Daly told Mr Tracey of this decision, Mr Tracey said to Mr Daly that if that was his position, there was not much he could do about it.
17 On 24 November 2011, Mr Tracey notified the FPA in writing that the VTSOs and small craft masters intended to take protected industrial action for a 48 hour period to commence at 5:00 am on 1 December 2011.
19 On 29 November 2011, Mr Donaldson-Stiff resigned as a member of the MUA and also withdrew his authority for Mr Tracey to act as his bargaining agent. He did this by hand delivering a letter to that effect to the MUA office in Fremantle. On the same day, Mr Mawbey also withdrew his authority for Mr Tracey to act as his bargaining agent and resigned as a member of the MUA. Mr Mawbey said that he resigned from the MUA because he disagreed with the tactics that were being used by Mr Tracey, in the sense that Mr Tracey first negotiated for a pay increase and then he sought to change the roster from “four and four” to “four and six”.
20 The majority of the VTSOs and small craft masters took strike action at the Fremantle port site for a 48 hour period. The strike action commenced at 5:00 am on 1 December 2011 and concluded at 5:00 am on 3 December 2011.
21 However, there were a number of VTSOs and small craft masters who worked during the 48 hour period of the strike. The VTSOs who worked were Mr Scott and Mr Mawbey. They were assisted in the control tower by Mr Allan Gray, the harbour master, and Mr Millett, the deputy harbour master. The small craft masters who worked were Mr Strickland, Mr Daly and Mr Donaldson-Stiff. They were assisted by Mr Kevin Edward, the manager of port operations, who, during the strike, worked as a deckhand. The consequence was that the strike action failed to shut down the operations of the port.
28 On 7 and 8 December 2011, Mr Tracey put up scab posters at a number of locations. These locations were on the MUA noticeboards in the crib room at H and J berths in the inner harbour, on the MUA noticeboards in the stevedore foreman’s office at KBT in the outer harbour, on the MUA noticeboards in the stevedore crib room at KBT, on a glass fronted noticeboard in the maintenance crib room in the maintenance workshop and in the fire station at the inner harbour.
29 Another location where Mr Tracey attached a scab poster was to the bollard at the entry gate to Victoria Quay 3 in the inner harbour. He attached the scab poster to the bollard about 2:30 pm on 8 December 2011. This event was captured on CCTV security footage.
30 The scab poster named Messrs Scott, Mawbey, Daly and Donaldson-Stiff - each of whom worked during the two day strike - as “scabs”. The scab poster also named Mr Watson as a “scab”. Even though Mr Strickland had worked during the strike, he was not named on the poster.”
6 The “scab poster” referred to by the primary judge at ,  and  was as follows:
SCABS IN FREMANTLE
The following people worked while their workmates legally took
Protected Action in a dispute with Fremantle Ports for a new
Control Tower – Dave Mawbey
Control Tower – Matt Scott
Pilot Vessels – John Daly
Pilot Vessels – Dave Donaldson-Stiff
Pilot Vessels – Doug Watson
This treacherous behaviour should stand condemned by all workers in Fremantle. Right across the Port of Fremantle, Wharfies, Seafarers and Port Workers have been campaigning for new Enterprise Agreements.
Workers in the control tower and pilot vessels have been doing the same and these lowlifes have turned on their colleagues to do the bosses bidding.
After God made the rattlesnake, the toad and the vampire, he had some awful substance left over, with which he made a SCAB.
A SCAB is a two legged animal with a corkscrew soul, water logged brain and a combination backbone made of jelly and glue. Where other people have their hearts, a SCAB has a tumour of rotten principles.
When a SCAB comes down the street, honest men turn their backs, the angels weep tears in heaven and the devil closes the gates of hell to keep them out. No-one has a right to SCAB, as long as there is a pool of water deep enough to drown their body, or a rope long enough to hang their carcass with.
Judas Iscariot is a gentlemen compared with the SCAB for after betraying his mater, he had enough character to hang himself and a SCAB has not. There is no word in the English language that carries so much hatred, scorn, loathing and contempt as the word SCAB.
Once so branded a SCAB, they are marked for life. There is no escape. It is infinitely worse than the brand placed upon Cain. It goes with them everywhere, it shadows their every footstep. It never dies, and no wonder, for it is synonym of all that is mean, contemptible and unmanly. It signifies that it is impossible for its owner to descend to lower depths.
The SCAB has tried to undermine people who are battling for the bread and butter of their partners and chil-dren. They have sought to defeat their fellows and rivet the chains of oppression around them. Judas would not have sunk so low.
The criminal for the penitentiary may, to some degree, rehabilitate their character, but the SCAB is an external fixture, a living monument of self inflicted shame, a reproach to honest people, something that bares the outer resemblance of a person, but from whom the dignity of humanity has departed for ever. As people shun the leper for fear of the physical contamination, so they shun the SCAB for fear of spiritual contamination.
7 The passage entitled “THE SCAB” is sometimes referred to in union parlance internationally as “Ode to a Scab”, a poem purportedly penned in about 1915 by the author Jack London and sometimes referred to as the “definition of a scab” (see e.g. Letter Carriers v Austin 418 US 264 (1974)), also attributed to him.
8 Use of the passage in the posters was, it might be thought, designed to bolster the intended insult with more than a century of hatred and condemnation of loathsome behavior.
9 Some support for this inference is available from evidence given by the second appellant, which was quoted by the primary judge in the liability judgment:
“Okay, okay. Now, you would agree, your experience on the waterfront, you would know the power of the word “scab,” to be called a scab?---Yes.
Yes. And, you agree it’s a very derogatory term?---Yes.
Which, it’s fair to say, is probably even a more derogatory term on the waterfront?---Well, it’s a derogatory term anywhere.
Yes. Okay. And, you agree, it doesn’t just mean that you work during a strike, does it? It means something more, that you’re being disloyal to your fellow workers?---Well, that’s what working during a strike is.
Sorry?---That’s what working during a strike is.
Yes. But it’s saying – by calling someone a scab you’re saying you have been disloyal to your fellow workers. Correct?---No, you’re saying you worked during a strike.
Yes. And but you’re also saying you're being disloyal by saying “scab”?---By working during a strike, yes.
Yes. And it’s also saying that you can’t be trusted?---I would imagine that would be the assumption.
Yes. And that you’re lowlife?---Yes.
Yes. And that you’re despicable?---Yes.
That you’re scum?---Yes.
That you lack morality?---Absolutely.
Yes. And that you’re poisonous or toxic to be with?---Certainly, I think people will avoid mixing with people who’ve been scabs, yes.
Yes, yes. And you know that to be labelled as a scab on the waterfront you can expect to be the subject of contempt?---Yes.
A lack of respect?---Yes.
People shunning you and avoiding you?---That depends on the circumstances but, yes.
Yes. And people showing hatred towards you?---Yes.”
10 The primary judge found that the appellants had contravened s 346(c) of the Fair Work Act 2009 (Cth) (“FW Act”):
A person must not take adverse action against another person because the other person:
(c) does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).
as informed by Item 7(b) of s 342(1) and s 342(2)(b) of the FW Act, namely, that adverse action is taken by an industrial association or an officer of such an association if either:
“342(1) Item 7 … the industrial association, or the officer or member of the industrial association:
(b) takes action that has the effect, directly or indirectly, of prejudicing the person in the person’s employment or prospective employment; …”
bearing in mind that adverse action includes “organising such action”.
11 The first argument to be considered on the appeal is that none of the employees was prejudiced, directly or indirectly, in their employment. The argument depends on confining the concept of “in the person’s employment” very narrowly to the relationship with an employer and to objectively apparent longer term, or ongoing, diminution in incidents or benefits of employment.
12 The appellants relied on observations by Jessup J in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3)  FCA 1218; (2012) 228 IR 195 at -, as follows:
“109 The second basis upon which the respondent relied for its submission that Mr Doevendans’ display of the scabs sign was unlawful arose under s 346(c) of the FW Act itself. The display of the sign was said to be adverse action within the terms of item 7 in the table in s 342(1) of the FW Act (ie because Mr Doevendans was at least a member of an industrial association) taken against the employees who had chosen not to take part in industrial action within ss 346(c) and 347(f) of the FW Act. It is clear, and I would find, that Mr Doevendans displayed the scabs sign, and inferentially did so particularly in the vision of those employees, because they had declined to take part in industrial action. The real question is whether his doing so amounted to adverse action against them within the meaning of s 342(1).
110 The provision in the table in s 342(1) upon which the respondent relies is so much thereof as defines “adverse action” as “action that has the effect, directly or indirectly, of prejudicing the person in the person’s employment”. The display of the scabs sign was said to be an attack on, or a criticism of, the employees who had chosen to work, and that this amounted to “prejudicing” them in their employment. The respondent relied on Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 at 18; 79 IR 339 at 341, in which it was held that an alteration of an employee’s position to his or her prejudice for the purposes of s 298K(1)(c) of the WR Act “covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”. There the verb in the statutory prohibition was “alters” (see now e.g. item 1 in the table to s 342(1) of the FW Act), while the verbal formula in the presently relevant prohibition is “has the effect … of prejudicing”, which appears to have first appeared as s 797(3)(a) of the WR Act after amendments made in 2005. For present purposes, I am prepared to take it that nothing of importance turns on such grammatical distinctions.
111 The only “effect” of Mr Doevendans’ display of the scabs sign on which the respondent relied was the direct one of being subject to the attack or criticism implied by the display of the sign as such. It was not said that there was any indirect effect. But I could not find that the direct effect relied on was “in the … employment” of the persons to whom it related. It was submitted on behalf of the respondent that the effect was “intimately connected with the employment” in the sense that the attack/criticism related to something done by these employees with reference to their employment. But that is not the discrimen under s 342(1). What is required is that the prejudicial effect occur in the employment; a relationship will not be sufficient. There is no suggestion that any of the employees who continued to work were, even indirectly, prejudiced in their employment. I do, therefore, reject this argument on behalf of the respondent.”
(Emphasis in original.)
13 Jessup J’s orders were set aside on appeal, BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2013) 219 FCR 245, an outcome affirmed in the High Court, Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243, but the observations relied upon by the appellants in the present appeal did not receive attention.
14 As appears from  and  of the passages we have set out from Jessup J’s judgment at first instance, this aspect of the argument before Jessup J suggested that to confront employees with a “scabs sign” (as they passed) would, without more, prejudice them in their employment. In our view, Jessup J’s rejection of that unadorned proposition, on the facts before him, does not resolve (or indeed influence) any question in the present proceedings, whether of fact or law.
15 In the present case, the findings of the primary judge are to a very different effect.
16 Those findings extended beyond effects only in the employment, but they are no less powerful on that account. It is apparent that the intent of distributing the posters, quite apart from their natural tendency to engender fear for the personal safety of the persons concerned, and the safety of their families and even their property, was to severely diminish the standing of the targets with their fellow employees, then and in the future. We would not accept that a consideration of “employment” for this purpose should be confined to any narrow consideration of a formal relationship with an employer or to physical or tangible benefits of employment.
17 It is apparent from the terms of the liability judgment that the primary judge was careful to focus on whether publication of the poster (and not other considerations) had caused the necessary prejudicial effect in employment. His Honour put to one side any separate consequence arising from the fact that the employees (or most of them) had continued to work during protected industrial action organised by the appellants. His Honour identified and took into account what may have been pre-existing interpersonal difficulties or tensions with other employees who participated in that protected action. The primary judge discussed the evidence of each of the five employees and was careful to take into account any apparent exaggeration.
18 The primary judge found that the employees had suffered emotional distress and fear for the safety of their families and also found that they feared for their own safety.
19 On the appeal, it was suggested that those “intermediate” findings did not adequately support the primary judge’s final conclusions in the liability judgment which included:
“250 The poster was particularly obnoxious because in inviting the reader to treat the named employees as devoid of human dignity, it thereby marginalised them and licensed their co-workers to treat them as less than human.
251 By engaging in the scab poster action Mr Tracey intended to cause fear, emotional harm and distress to each of the named employees in their employment, and his conduct had that effect.
252 In my view, the scab poster action had the effect of prejudicing each of the named employees in their employment because on discovering that each had been named in the scab poster, each named employee felt the emotional distress and anger of marginalisation in the workplace. They knew that their co-workers had been invited to regard each of them as being unworthy of being treated with the respect and dignity which would otherwise be accorded to co-workers, and indeed, fellow human beings. Mr Mawbey best described the feeling of marginalisation in the workplace, when he said that he felt that all the workers were being “pushed against” him and the other named employees.
253 Further, after learning of the scab posters, the named employees developed a fear that a co-worker, influenced by the content of the scab poster, would visit violence upon him or upon a member of his family, or upon his property. Thus after, and because of the scab poster action, each named employee attended work with an underlying apprehension and fear that a co-worker, whom they may not even know, would visit violence upon him, whilst at work, or upon him and/or his family after work, or upon his property.
254 Before the dissemination of the poster, as they went about their duties at work, each of the named employees had not been burdened by the distress of marginalisation within the whole work force nor with the fear of violence to person or property at the hands of a co-worker, whom they might not know, but who was influenced by the inflammatory content of the poster. In my view, this deterioration in the position of the named employees falls within the concept of “prejudicial alteration” referred to by the High Court in Patrick Stevedores Operations and applied in Qantas.
255 Accordingly, in my view, the scab poster action of Mr Tracey had the effect of prejudicing each of the named employees in their employment.”
20 In our respectful opinion, those findings, and the legal conclusion of contravention which proceeds from them, are unassailable. We would not accept any suggestion that the conclusions of the primary judge were not consistent with his earlier findings. It was not suggested that they were not open on the evidence before him.
21 In the present case, it seems to be clear that the primary judge was comfortably satisfied that publication of the posters had achieved their intended effect – to act to the prejudice of the five employees – and that those intended effects were bound up with their employment. It would be artificial to say that the prejudice was not in the employment.
22 As Bromberg J pointed out in Quinn v Overland  FCA 799; (2010) 199 IR 40 (at ):
“101 … There is now a greater recognition than ever that employment is important to an employee not simply because it provides economic sustenance. Workplaces are a hub of important human exchanges which are vital to the wellbeing of individual workers. Work provides employees with purpose, dignity, pride, enjoyment, social acceptance and many social connections. As well, the performance of work allows for skill enhancement and advances career opportunities. These non pecuniary attributes of work are important and their denial can be devastating to the legitimate interests of any worker, either skilled or unskilled.”
23 In Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539, Callinan and Heydon JJ also referred (at ) to the legitimate pursuit of “job satisfaction”.
24 The publication of the poster was clearly not intended to leave a neutral, or no, effect on the five employees. On the contrary, it was intended to damage them. The primary judge found that the intended effect was achieved in their employment. In our view, the findings made by the primary judge provided more than adequate support for his findings that the appellants contravened s 346 of the FW Act.
25 The appeal against liability should be dismissed.
26 In the penalty judgment, the primary judge ordered that the appellants should pay penalties and should pay compensation to each of the employees. It is convenient to deal first with the question of compensation.
27 The appellants proposed, having been found liable, that roughly the same compensation be paid with respect to the contraventions involving four of the employees (“approximately”, “of the order of”, or “no more than”, $2,500) and up to twice that amount for the contraventions concerning Mr Watson (“of the order of $4,000–$5,000”). The respondent also proposed compensation to Mr Watson twice that for the others, but suggested compensation of $50,000 (for four employees) and $100,000 (for Mr Watson).
28 The primary judge ordered compensation of $20,000 to four of the employees and $40,000 to Mr Watson who, in the assessment of the primary judge, had been treated much more egregiously than the others. The awards of compensation were attacked on the appeal for their alleged failure to pay regard to the differing circumstances of the five employees and as manifestly excessive. The appellants alleged the awards were “unreasonable and plainly unjust”. We reject those contentions.
29 The primary judge said in the penalty judgment:
“77 I have set out in the principal judgment the emotional distress and the fear which each of the named employees suffered. In my view, in awarding compensation, a distinction is to be drawn between Mr Daly, Mr Donaldson-Stiff, Mr Mawbey and Mr Scott, on the one hand and Mr Watson, on the other hand.
78 An important distinguishing aspect of this case, from the cases to which I have referred above, is that each of the five named employees experienced a continuing fear of physical harm to themselves and their family, and the fear of damage to property. This aspect of the emotional distress experienced by each of the named employees should find expression in the amount of compensation awarded.
79 In relation to each of Mr Daly, Mr Donaldson-Stiff, Mr Mawbey and Mr Scott, I award compensation in the sum of $20,000. In making an award in this sum, I have taken into account that Mr Daly and Mr Donaldson-Stiff after the scab poster action again elected to work during a strike, and that I found in the principal judgment, that Mr Daly exaggerated the extent of his emotional distress.
80 Mr Watson did not work during the strike. Mr Watson was, nevertheless, named as a “scab” because he fraternised for a very brief time with the incoming crew who attended for work as the first shift to work during the strike period.
81 Mr Watson was unable to sleep for a number of nights after he found out about the scab poster. He felt a particular outrage because he had not worked during the strike and he had been falsely denigrated by Mr Tracey as having done so. When he sought an explanation from Mr Tracey as to why he was named in the scab poster and sought an apology from Mr Tracey, Mr Tracey insulted Mr Watson and refused to give an apology. Mr Watson’s emotional distress was further exacerbated by the fact that Mr Tracey had told him that he would not be able to work again in the maritime industry in Western Australia and, on the basis of the threat, Mr Watson changed his plans which had been to work overseas for some time before returning to Australia. Further, Mr Watson feared that he and his family would suffer harm at the hands of disgruntled workers.
82 In my view, the sum of $40,000 is an appropriate and reasonable award of compensation for Mr Watson.”
30 We do not accept that any of those awards of compensation exceeded what was permissible in the proper exercise of the primary judge’s discretion.
31 The appellants sought to make a comparison with the approach taken on appeal in Richardson v Oracle Corporation Australia Pty Ltd (2014) 223 FCR 334 (“Richardson”), suggesting that the award in that case concerned a “severe psychological injury”, unlike the present case, and that the compensation awarded by the primary judge too closely approached the level in Richardson, absent a higher level of injury. We do not agree that either on that appeal, or at first instance (Richardson v Oracle Corp Australia Pty Ltd  FCA 102; (2013) 232 IR 31), the injury was found to be severe in the sense suggested in the appellants’ submissions. The primary judge discussed Richardson. We can see no error in his consideration of that case. It would not govern the exercise of discretion in the present case.
32 A further comparison was with an award of compensation ($7,500) in Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 (“ALAEA”), suggesting that this was an appropriate standard for awards of compensation in the present case.
33 Dealing with ALAEA, the primary judge said in the penalty judgment:
“75 First, ALAEA was not a case where there had been, as there was in this case, widespread distribution of the disparaging comments made in the scab poster which caused and exacerbated the emotional distress experienced by the five named employees. In other words, this was a case of “naming and shaming” the five employees to the Fremantle Port Authority workforce at large, whereas by contrast, in Mr Puspitono’s case there was no public element to his distress and humiliation.
76 Secondly, there was no element in ALAEA of Mr Puspitono experiencing a continuing fear of physical harm to himself or his family or of property damage.”
34 In our view, no error has been shown in the exercise of discretion of the primary judge in awarding compensation. Those awards are not manifestly excessive; neither are they unreliable due to the same sums being awarded in four cases. The awards are not “unreasonable and plainly unjust”, as suggested by the appellants.
35 The penalties found by the primary judge were also attacked as manifestly excessive and as involving forms of “double punishment”.
36 The primary judge paid particular regard to the following factors (penalty judgment at ):
“(a) the nature and extent of the impugned conduct;
(b) the circumstances in which the impugned conduct took place;
(c) the period of the impugned conduct;
(d) the nature and extent of any loss or damage sustained as a result of the impugned conduct;
(e) whether there has been similar previous conduct by the respondents;
(f) whether the contraventions arose over one course of conduct;
(g) whether senior management was involved in the impugned conduct;
(h) whether there had been any contrition exhibited;
(i) whether the respondents had cooperated with the applicant;
(j) the need for deterrence.”
37 Paying regard to those factors reflected a position common to the parties. The particular findings may be found at -. Then the primary judge said in the penalty judgment:
“59 I take into account the matters to which I have referred in these reasons and applying an instinctive synthesis approach, in respect of all the matters to which I have referred, I find that in respect of each of the respondents, the contravention attracts a penalty in respect of each contravention of 75% of the maximum penalty.
60 Accordingly, in relation to each of the contraventions, I would impose a penalty on the MUA of $24,750. The total penalty in relation to the five contraventions, before the application of the totality principle, is, therefore, $123,750. However, on the application of the totality principle, I impose a penalty of $80,000.
61 In relation to Mr Tracey, the penalty for each contravention is $4,950. The total penalty, therefore, for the five contraventions is $24,750, before the application of the totality principle. In my view, the appropriate penalty once the totality principle is applied is $15,000.”
38 We find, having regard to the findings which preceded those conclusions, that there was no error in the primary judge initially assessing a penalty for each contravention at 75% of the maximum penalty. There was no error, either, in dealing with the contraventions individually to that point. His Honour recorded in the penalty judgment:
“16 As a preliminary matter, I observe that each of the parties accepted that the imposition of the penalty should be approached on the basis that there were five separate contraventions of s 346 of the Fair Work Act by each of the MUA and Mr Tracey, on the basis that adverse action which was taken against each of the employees, constituted a separate contravention. It was accepted that s 557 of the Fair Work Act had no application to a contravention of s 346 of the Fair Work Act. Each of the parties also accepted that there were common elements in the contravening conduct in that Mr Tracey was the main protagonist and all of the named employees were named in the same poster; and that, therefore, these circumstances of the case could be addressed by the application of the totality principle.”
39 It was appropriate to apply the “totality principle” as a “final check to be applied to ensure that a final, total or aggregate, penalty is not unjust or out of proportion to the circumstances of the case” (see Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 at  and ). Having done so, the primary judge made a substantial reduction in the aggregate penalties which would otherwise be payable. The fact, as the appellants complained, that the total penalty remained “approximately 2¼ times the maximum for a single contravention” is neither here nor there; it is simply irrelevant.
40 We reject each of the grounds of appeal and dismiss the appeal.
REASONS FOR JUDGMENT
41 The facts giving rise to the subject proceeding are set out in the judgment of Tracey and Buchanan JJ. In particular, I refer to the matters set out from  to  of the joint judgment. Further, the relevant legislation is therein set out (see, in particular, at ) and will not be here repeated. I, like their Honours, will refer to the two judgments of the primary judge as the “liability judgment” and the “penalty judgment”. I will also adopt the shorthand used in the liability judgment—“the scab poster action”—as compendiously describing Tracey’s actions described at  of the liability judgment. I will refer to the appellants collectively as the MUA, except where it is necessary to distinguish between them.
42 The conduct in issue in this proceeding was the hanging of copies of a poster (called by the respondent (“Ombudsman”) the “Scab Poster”) at various maritime sites including in Fremantle, Western Australia, describing Messrs Mawbey, Scott, Daly, Donaldson-Stiff and Watson as scabs, and setting out a denunciation of “the Scab” in verse. The content of the scab poster, including the denunciation, is set out in the joint judgment at . It was alleged by the Ombudsman, and accepted by the primary judge, that the scab poster action breached s 346(c) of the Fair Work Act 2009 (Cth) (“FW Act”).
43 It is well known that the word “scab”, in a labour context, expresses criticism or disagreement and is uncomplimentary. The word has a long history of deprecatory use. Originally it referred to a disease of the skin. The cutaneous connection remains present in the word’s now-usual meaning: the crust forming over a wound or sore during cicatrisation (first used in around 1400). But by the early 1600s the word “scab” was also in use as a term of abuse and, figuratively, as implying moral or spiritual disease (c.f. W Shakespeare, Coriolanus, I. i. 162–164). By the late 1700s, it had taken on the connotation in issue in these proceedings: “[a] workman who refuses to join an organized movement on behalf of his trade; in extended uses: a person who refuses to join a strike or who takes over the work of a striker; a blackleg; a strike-breaker”. The first usage recorded in the Oxford English Dictionary specifically referring to strike-breaking comes, interestingly enough, from a trial. The trial was of certain boot and shoemakers in Philadelphia, a record of which was published in 1806: T Lloyd, The Trial of the Boot & Shoemakers of Philadelphia, on an Indictment for a Combination and Conspiracy to Raise their Wages (B Graves, Philadelphia, 1806).
44 The denunciatory verse contained in the scab posters is commonly attributed to the well-known American author Mr Jack London. It has a litigious history. The verse was in issue in the judgment of the United States Supreme Court in Old Dominion Branch No. 496, National Association of Letter Carriers v Austin, 418 US 264 (1974), where its use was alleged to have been libellous.
45 The facts of Austin have parallels with this proceeding. There, as part of efforts to organise letter carriers, a union published a “list of scabs” along with the writing attributed to Mr London. Some of the listed persons brought libel actions. At 286, the majority (Marshall, Brennan, Stewart, White and Blackmun JJ) said that Mr London’s “definition of a scab” is “merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members towards those who refuse to join”, and that it was “a familiar piece of trade union literature … published countless times in union publications over the last 30 years or more”. Its use was held not to be actionable. At 277, the majority held that the right to form, join or assist labour organisations “must not be stifled by the threat of liability for the overenthusiastic use of rhetoric or the innocent mistake of fact”.
46 In the background was a federal policy of “uninhibited, robust, and wide-open debate in labor disputes” (at 273). At 272, statements from Linn v Plant Guard Workers, 383 US 53 (1966) were adopted, that labour disputes were ordinarily “heated affairs”, involving “bitter and extreme charges, countercharges, unfounded rumours, vituperations, personal accusations, misrepresentations and distortions”.
47 That labour strikes involve heated or bitter disputation between fellow workers may be regrettable, but is unsurprising. For workers, there are high stakes involved in the act of withdrawing their labour. Jobs and thus livelihoods may be put at risk. As the success of a strike is often dependent upon unity, perceived disloyalty to the collective will naturally foster disagreement as between fellow workers. Ill-feeling may also arise from the fact (or at least the perception) that non-striking employees will benefit from a successful strike, despite having hindered the potential for success and despite having not made the sacrifices made by those workers who participated.
48 However, Austin is of peripheral interest only because the context here is distinguishable. Here, the primary judge took a very different view to that of the Court in Austin of the criticism expressed of non-striking employees through the use of Jack London’s writing. The primary judge regarded the content of the scab poster as not only defamatory but also as inviting the reader to treat the non-striking employees as “devoid of human dignity” (at ). The judge said that the poster was “obnoxious”, that it marginalised the non-strikers and “licensed their co-workers to treat them as less than human” (at ). Further, the primary judge found that the scab poster action was intended “to cause fear, emotional harm and distress” (at ).
49 It is in that context—a context unchallenged on the appeal—that the following issues (broadly stated) arise for determination:
(1) whether the non-striking employees were prejudiced in their respective employments, for the purposes of s 342(1) of the FW Act;
(2) whether the compensation awarded by the primary judge was manifestly excessive; and
(3) whether the penalties imposed by the primary judge were manifestly excessive.
50 I will address those issues in that order.
Prejudice in employment
51 The primary judge found that the scab poster action constituted adverse action within the meaning of Item 7(b) of the table in s 342(1) of the FW Act (“Item 7(b)”).
52 Item 7(b) provides (with emphasis added) that:
“[Adverse action is taken by] an industrial association, or an officer or member of an industrial association, against a person [if] the industrial association, or the officer or member of the industrial association … takes action that has the effect, directly or indirectly, of prejudicing the person in the person’s employment or prospective employment …”
53 I have emphasised the word “in” because it sits at the heart of the constructional contest raised by appeal grounds 1–3. There is no issue that the scab poster action had a prejudicial effect upon the non-striking employees. The issue on the question of liability is whether the prejudicial effect was located “in” the employment of the non-striking employees.
54 Relevantly, the primary judge said this at –:
“ In my view, the scab poster action had the effect of prejudicing each of the named employees in their employment because on discovering that each had been named in the scab poster, each named employee felt the emotional distress and anger of marginalisation in the workplace. They knew that their co-workers had been invited to regard each of them as being unworthy of being treated with the respect and dignity which would otherwise be accorded to co-workers, and indeed, fellow human beings. Mr Mawbey best described the feeling of marginalisation in the workplace, when he said that he felt that all the workers were being “pushed against” him and the other named employees.
 Further, after learning of the scab posters, the named employees developed a fear that a co-worker, influenced by the content of the scab poster, would visit violence upon him or upon a member of his family, or upon his property. Thus after, and because of the scab poster action, each named employee attended work with an underlying apprehension and fear that a co-worker, whom they may not even know, would visit violence upon him, whilst at work, or upon him and/or his family after work, or upon his property.
 Before the dissemination of the poster, as they went about their duties at work, each of the named employees had not been burdened by the distress of marginalisation within the whole work force nor with the fear of violence to person or property at the hands of a co-worker, whom they might not know, but who was influenced by the inflammatory content of the poster. In my view, this deterioration in the position of the named employees falls within the concept of “prejudicial alteration” referred to by the High Court in Patrick Stevedores Operations and applied in Qantas.”
55 These passages do not expressly reveal how the primary judge construed the words “in the person’s employment”. The holding inferentially rejects a submission made to the primary judge by the MUA that the expression “in the person’s employment” required that the terms and conditions of the person’s employment must be adversely affected. In my view, the primary judge was right to reject that construction. The same or similar contention was made by the MUA on the appeal. Relevantly, the MUA contended in its written submissions that:
“Item 7(b) requires action that has the effect, directly or indirectly, of prejudicing a person in the person’s employment. It must affect the person’s actual employment relationship. In this respect it follows the formulation in Item 1(b) of the Table rather than the broader formulation in Item 1(c).”
56 Item 1 of the Table in s 342(1), to which the MUA submission referred, provides as follows:
“[Adverse action is taken by] an employer against an employee [if] the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee's prejudice; or
(d) discriminates between the employee and other employees of the employer.”
57 The origins of that Item can be traced to s 298K(1) of the Workplace Relations Act 1996 (Cth), in relation to which Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ said this in Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia (1998) 195 CLR 1 at :
“Paragraph (a) covers termination of employment; par (b) covers injury of any compensable kind; par (c) is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.”
58 I do not accept that Item 7(b) was intended to take its meaning from that attributed to the predecessor provision to Item 1(b). The inclusion of the word “prejudicing” in Item 7(b) strongly suggests that the meaning of that Item has a far-closer association with Item 1(c) than with Item 1(b). The reference in Item 7(b) to the adverse action “prejudicing” a person should be interpreted consistently with what was said in Patrick, namely, that the paragraph covers “any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”.
59 That describes the nature of the “effect” of the adverse action. The word “in” has a different purpose. It requires that the effect be located in the person’s employment. It identifies that there must be a nexus between the effect and an advantage enjoyed by the person which that effect has prejudicially altered. The advantage affected must be an advantage enjoyed in the person’s employment. The word “in” connotes that the advantage must derive from the employment. If a mere relation, as distinct from a derivational relation, between the employment and the advantage had been intended, the familiar statutory phrase “in or in connection with”, or perhaps just “in connection with”, would likely have been utilised. The preposition “in” operates by way of limitation. That it does not have the breadth of “in connection with” or “in relation to” has been emphasised on many occasions in relation to the phrase “in trade or commerce” in the former s 52 of the Trade Practices Act 1974 (Cth): Toben v Jones (2012) 298 ALR 203 at  (Yates J) and the cases there cited. In Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594, Toohey J at 614 said of the phrase “in trade or commerce”:
“… The question is not whether the conduct engaged in was in connexion with trade or commerce or in relation to trade or commerce. It must have been in trade or commerce. While there are dangers in seeking for the meaning of an expression through the substitution of another, the phrase “as part of trade or commerce” does, I think, come close to what is intended.”
(Emphasis in original).
60 The MUA relied on Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) (2012) 228 IR 195 and submitted that the primary judge erred in not following it. In that case, an employee, Mr Doevendans, displayed a sign carrying the words “No Principles Scabs No Guts”. The sign was held in protest against employees who worked whilst their co-workers took protected industrial action. As Mr Doevendans was a member of an industrial association, it was contended that the display of the sign was adverse action within the meaning of Item 7(b). Consistently with the constructional approach I prefer, Jessup J adopted the observations made in Patrick to conclude that Item 7(b) “covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question” (at ). Nevertheless, Jessup J held that Mr Doevendans’s conduct did not fall within Item 7(b) because the prejudicial effect did not occur in the employment of any of the non-striking employees. At , Jessup J said this:
“The only “effect” of Mr Doevendans’ display of the scabs sign on which the respondent relied was the direct one of being subject to the attack or criticism implied by the display of the sign as such. It was not said that there was any indirect effect. But I could not find that the direct effect relied on was “in the … employment” of the persons to whom it related. It was submitted on behalf of the respondent that the effect was “intimately connected with the employment” in the sense that the attack/criticism related to something done by these employees with reference to their employment. But that is not the discrimen under s 342(1). What is required is that the prejudicial effect occur in the employment; a relationship will not be sufficient. There is no suggestion that any of the employees who continued to work were, even indirectly, prejudiced in their employment. I do, therefore, reject this argument on behalf of the respondent.”
(Emphasis in original)
61 BHP Coal was overturned on appeal, but not in relation to the observations just quoted. The MUA’s contention before the primary judge that BHP Coal was indistinguishable was rejected. The primary judge distinguished BHP Coal on the basis that the effect of the scab poster action was more severe. It singled out and named the non-striking employees, the communication was more widely distributed and its language was “extreme, offensive, cruel and abusive” (see at ).
62 Whilst those observations may be true, with respect to the primary judge, that was not a basis for distinguishing BHP Coal. The severity of the impugned conduct, which the primary judge relied upon, addressed the nature of the “effect” but it said nothing as to whether the effect was located “in” the employment. What, however, does make BHP Coal distinguishable is that, unlike BHP Coal, a finding that an advantage derived from employment was prejudicially affected is available on the facts of this case.
63 The primary judge found that the non-striking employees suffered emotional distress and fear as a result of the scab poster action. That was held to be the prejudicial effect suffered by the non-striking employees in their employments. Whilst the primary judge did not reason to that conclusion by expressly identifying that an employment includes non-pecuniary advantages, the Ombudsman sought to justify the conclusion reached by the primary judge on the basis that a prejudicial alteration to a non-pecuniary benefit of employment will constitute an effect “in” the employment within the meaning of Item 7(b). The Ombudsman contended that the non-pecuniary benefits of employment include wellbeing and enjoyment of work, a sense of belonging and camaraderie with co-workers, reputation and respect in employment, security or safety in employment and an absence of stress or distress in employment.
64 In support of that proposition, the Ombudsman relied upon observations I made in Quinn v Overland (2010) 199 IR 40 at  that:
“There is now a greater recognition than ever that employment is important to an employee not simply because it provides economic sustenance. Workplaces are a hub of important human exchanges which are vital to the wellbeing of individual workers. Work provides employees with purpose, dignity, pride, enjoyment, social acceptance and many social connections. As well, the performance of work allows for skill enhancement and advances career opportunities. These non pecuniary attributes of work are important and their denial can be devastating to the legitimate interests of any worker, either skilled or unskilled.”
65 Other authorities that have recognised the non-pecuniary benefits of employment include Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 at  (Callinan and Heydon JJ) and Actrol Parts Pty Ltd v Coppi (No 2)  VSC 694 at  (Bell J) (see also the cases there cited).
66 Whilst I adhere to the observation I made in Quinn and agree that, ordinarily, there are non-pecuniary benefits associated with an employment, there is, as I have said, a distinction to be drawn between an advantage obtained in connection with an employment and one that is derived from an employment. Bearing in mind the limitations imposed by the text of Item 7(b), for the affection of a non-pecuniary benefit to fall within the meaning of adverse action, it must be an advantage derived from the employment.
67 It is also necessary to observe that not every alteration to an advantage derived from employment will constitute adverse action. There are limitations on the reach of what may constitute a prejudicial alteration. Difficult questions may arise as to whether a prejudicial alteration to an advantage derived from an employment has in fact occurred. Those questions may involve questions of degree. At the least, the prejudicial alteration must be “real and substantial”, rather than merely possible or hypothetical: Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244 at – (Gray, North and Besanko JJ); Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93 at  (Black CJ, Ryan and Merkel JJ).
68 I turn to consider more closely the findings made by the primary judge. At –, the primary judge expressed ultimate conclusions as to the way in which the non-striking employees felt as a result of the scab poster action. The primary judge held that they felt:
(1) the emotional distress and anger of marginalisation in the workplace (at ); and
(2) the fear that a co-worker, influenced by the content of the scab poster, would visit violence upon the non-striking employee or upon a member of his family, or upon his property (at ).
69 It seems to me apparent from the ultimate conclusions expressed by the primary judge at  that what the primary judge regarded as the prejudicial alteration brought about by the scab poster action was the burden of the distress of marginalisation and the fears of violence and property damage which the non-striking employees experienced “as they went about their duties at work”. The fact that distress and fear was experienced at work seems to me to have been the basis for the primary judge’s conclusion that, in each case, the non-striking employees were prejudiced “in” their employment.
70 I agree that, on the facts of this case, a finding that the emotional distress and fear was experienced in the workplace was important to sustain the conclusion that the scab poster action constituted adverse action. However, I would stress that the question is not whether the effect was experienced at work but whether the advantage derived from the employment was prejudicially altered in a real and substantial way. That the harm was occasioned at work will not necessarily be determinative. To illustrate, whether an assault on an employee perpetrated for a prohibited reason is actionable will not necessarily be dependent upon it occurring at work. If the assault prejudicially alters an advantage derived from the employment, such as the employee’s capacity to work, all other elements being satisfied, the conduct will constitute adverse action and contravene s 346. Accordingly, an assault that takes place somewhere other than the workplace, which has such an effect, will be equally actionable. Equally, as I explain below at , the fact of experiencing an effect at work is not determinative in favour of the effect being in employment. It may well be that an effect experienced at work is more likely to result in prejudicial alteration to an advantage derived from employment, but it is only prejudicial alteration of an advantage which Item 7(b) requires be established, not also the location of its experience.
71 The primary judge did not expressly identify a prejudicially-altered advantage derived from employment, but, inferentially, I think he did. To find that as a result of certain conduct an employee is now burdened with distress and a fear experienced at work is not relevantly different to a finding that a work environment previously free of that distress and fear has been prejudicially altered by the conduct. The latter characterisation more clearly reveals the underlying advantage or benefit the subject of the prejudice. It is the benefit of a safe working environment.
72 A safe working environment is an advantage derived from employment and, in that respect, it is not merely the actuality of being safe but also the perception of being safe which forms part of the benefit. A safe work environment includes protection from the psychological harm caused by distress and fear. An employee’s right to work in an environment free of bullying or other forms of harassment is an obvious example of what a safe work environment entails.
73 Conceptually, then, emotional distress and fear of harm is capable of constituting a prejudicial alteration to an advantage derived from an employment. Conduct that encourages employees to regard their fellow employee as unworthy of being treated with respect and dignity, and that thereby generates emotional distress and a feeling of marginalisation which is experienced in the workplace by the targeted employee, is capable of being prejudicial to an advantage derived from employment, namely a safe working environment. Equally, a fear experienced in the workplace that violence will be inflicted upon that employee by a co-worker is also capable of prejudicially altering that advantage.
74 Although the analytical framework I have adopted differs from that of the primary judge, the findings made by the primary judge—that the non-striking employees suffered emotional distress and fear which had prejudicial effects in their employments—do not bespeak an error in the interpretation of Item 7(b).
75 The primary judge’s findings also include findings based upon fears of indirect harm: that is, the fears of the non-striking employees that their families or property would be harmed. The MUA contended that a fear or concern about harm that may be occasioned beyond or outside of the workplace cannot amount to a prejudice “in” the employment. As a general proposition that contention must be rejected for the reasons already given, including the illustration at  of an assault inflicted at some place other than at work.
76 On the other hand, there must be a limitation upon the extent to which a fear or concern experienced at work can be said to prejudicially affect an advantage derived from employment. Employees bring to work all manner of fear or distress which is unconnected with their employment. The provision of a safe working environment to an employee does not extend to the avoidance of fear or distress unconnected to the employment. But where the fear or distress is not only experienced in the employment but arises from it, there is a basis for concluding that the non-pecuniary advantage of a safe work environment has been altered.
77 On the conclusions made by the primary judge, the fears of the non-striking employees for their family or property were of that character. They were, in each case, sourced in the fact that the non-striking employee had performed his duties in accordance with his employment.
78 For those reasons, I would reject the MUA’s contention that, on the facts as found, the primary judge misconstrued Item 7(b) in holding that the scab poster action had the effect of prejudicing the non-striking employees “in” their employment.
79 In reaching that view I have taken into account the MUA’s contention that the ultimate conclusions made by the primary judge about the emotional distress and fears experienced by the non-striking employees, and recorded at –, were not consistent with the findings of primary or constituent facts made as to those matters earlier in the reasons for judgment. The MUA contended that the primary findings established little more than that each of the non-striking employees was fearful that his family would be subjected to harm, and that that could not constitute prejudice “in” employment.
80 Whilst I accept that there are some not-insubstantial inconsistencies between the conclusions made at – and the primary findings, on the question of liability the inconsistencies are of little moment. There is at least one finding in relation to each of the non-striking employees capable of sustaining the ultimate conclusion. Each of Daly, Donaldson-Stiff, Scott and Watson experienced fear for their families whilst at work. There is no such finding in respect of Mawbey. But a finding that Mawbey feared for his own safety may be inferred from the finding that he feared a “retaliatory response from members of the MUA”. A finding of fear for his own safety was expressly made in relation to each of Donaldson-Stiff, Scott and Watson (but not Daly). The primary findings also included a finding in relation to each of the non-striking employees (other than Scott) that he experienced emotional distress. So, in the case of each non-striking worker, there is a primary finding or findings available such that, when taken together, the more general findings at – are sustainable.
81 The primary judge awarded compensation of $20,000 to each of Daly, Donaldson-Stiff, Mawbey and Scott, and $40,000 to Watson. Those awards are the subject of challenge. Whilst the MUA submitted that the primary judge’s assessment of compensation involved a misapprehension of facts and an error of principle, the primary basis of each challenge was that the award was unreasonable or plainly unjust having regard to the low level of effects of the contraventions found.
82 Appellate courts are slow to interfere with awards of general damages, as the following distillation of the relevant principles collected by Kenny J (with whom Besanko and Perram JJ agreed) at – of Richardson v Oracle Corporation Australia Pty Ltd (2014) 223 FCR 334 demonstrates:
“ An appellate court ought not interfere with the sum of general damages fixed by a trial judge simply because it considers it would have fixed some other amount: see Smith's Newspapers Ltd v Becker (1932) 47 CLR 279 at 300 (Dixon J); Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 (Precision Plastics v Demir) at 369 (Gibbs J); Wilson v Peisley (1975) 50 ALJR 207 at 214; 7 ALR 571 at 585 (Mason J) (Wilson v Peisley); and Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 (Rogers v Nationwide News) at - (Hayne J). Before this Court can interfere with the award made by the trial judge, the Court must consider either that the judge acted on an error of principle, misapprehended the facts, allowed extraneous matters to affect the assessment, failed to take account of a material consideration, or that “the judge has made a wholly erroneous estimate of the damages suffered”: see House v The King (1936) 55 CLR 499 at 504-505 and Precision Plastics v Demir at 369. Ground 20 is directed to this last-mentioned matter. That is, a contention that an award of damages is “manifestly inadequate” “invokes the last of the bases for appellate review of an exercise of discretion identified in House v The King”: compare Rogers v Nationwide News at .
 To adapt the language of Hayne J in Rogers v Nationwide News at  and  (who was speaking of “manifest excess”):
“If manifest [inadequacy] is alleged, it is not said that a specific error of principle or fact can be identified. Rather, the contention that damages are manifestly [inadequate] alleges that the result at which the primary judge arrived is evidently wrong and that, although the nature of the error made may not be discoverable, there must have been a failure to properly exercise the discretion in fixing the amount to be awarded.
It is important to emphasise, however, that the task of an appellate court asked to set aside an award of damages as manifestly [inadequate] is not simply mathematical. The appellate court does not begin by identifying the damages which it would have allowed and then, applying some margin for difference of view, observe the mathematical relationship between the award made and the figure it would have awarded. Rather, the question for the appellate court is whether the result at which the trial judge arrived bespeaks error. What must be identified is manifest [inadequacy], not just [inadequacy].”
(Emphasis in original.)
83 An error of principle relied on by the MUA is that the primary judge failed to assess damages discretely for each of Daly, Mawbey, Donaldson-Stiff and Scott. Each was awarded the same amount where their respective circumstances were arguably different. To that contention, the Ombudsman responded that, given the inherent imprecision involved in fixing compensation for emotional distress and the common source of each instance of distress in this case, it is unsurprising that equal amounts of compensation were awarded. There is some force in that submission. However, when the primary judge’s awards of compensation are examined against the findings made as to the suffering experienced by the employees, there is a disconnection which, to my mind, bespeaks error and a manifest excess in the compensation awarded.
84 I will commence with the findings made in the liability judgment before considering the penalty judgment.
85 The primary judge found no evidence that Daly was the subject of ostracism by co-workers attributable to the scab poster action (). He had not been subjected to any threats, intimidation or bullying between December 2011 and December 2012 (). Daly found out about the existence of the scab posters on 12 December 2011 when an article about the poster appeared in the West Australian newspaper. The primary judge accepted that, on seeing the scab poster, Daly experienced horror which gave way to hurtful resentment and what Daly described as the shame of someone having said such a “disgusting thing” about him (). It was further accepted that Daly had felt anxiety and fear for the safety of his family ().
86 As to the extent and continuing effect of the distress and fear suffered by Daly, the primary judge said that he approached Daly’s evidence with caution () and, in the penalty judgment (at ), said that he had found that Daly had exaggerated the extent of his emotional distress. Relevantly, Daly had deposed that being named and shamed as a scab was “the worst feeling I have had in my life” and that he had “never experienced so much anguish” (). Daly had also said that he still worried about the safety of his wife and children (). The primary judge (at ) rejected Daly’s characterisation of the extent of his distress including because Daly had not taken up counselling or security assistance offered to him, and had been content to work during the two strikes by port service officers which occurred in the 12 months immediately following the dissemination of the scab posters.
87 Ultimately, the primary judge did not make a finding as to the extent and continuing effect of Daly’s distress and fear. The judge’s findings are inconsistent with the notion that the distress was extraordinary, but his Honour did not say where on the scale between material and very serious the extent of the distress fell. We know, however, that there was no finding that Daly suffered any psychological injury as a consequence of the scab poster action or that his physical health was affected in any way. Nor was there any finding that the emotional distress experienced by Daly led him to take time off work, impinged upon his personal life, or otherwise led to a loss of enjoyment of life itself. As to Daly’s fear for the safety of his wife and family, the primary judge accepted that Daly felt such anxiety and fear, but its extent and duration must be read as subject to the doubt expressed by the primary judge as to Daly’s evidence. There was no evidence or any finding made in the liability judgment that Daly experienced any fear for himself or fear for his property.
88 Mawbey deposed that he had not had any “bad experiences” from other workers after the distribution of the scab poster (): nobody had treated him otherwise than “as a damn good friend”. The primary judge held that Mawbey suffered no ostracism by reason of the scab poster action but that he had suffered emotional distress comprising the feeling of anger and the fear of a retaliatory response from members of the MUA because of the re-awakening of bad memories by reason of events to which I will shortly refer. Mawbey deposed that the experience of being named in the scab poster had been “quite upsetting for him”. He had thought that the comments on the poster were about as “low as you can get” and when he read the West Australian article he felt sick in the stomach and “bludgeoned down”. His overall reaction was one of anger.
89 The primary judge did not address either the extent or the duration of the emotional distress to which Mawbey deposed. As with Daly, there was no finding of psychological injury or that the distress experienced had impinged upon Mawbey’s capacity to work or upon his enjoyment of life. There was no suggestion in the evidence that Mawbey feared for his family. Mawbey’s fear of a retaliatory response by reference to his prior experience must be understood in the context of the prior events to which he referred, which the primary judge described at (). In the 1980s, Mawbey was “blackballed” for standing up to a union delegate. Mawbey considered that that had resulted in his motorcycle tyres being let down and cigarette burn marks being made on the duco of his motorcycle.
90 The primary judge found that Donaldson-Stiff had experienced some ostracism at work by being given the “silent treatment” by two or three co-workers. However, the judge rejected the allegation that any ostracism was worsened as the result of the distribution of the scab posters, and in that respect found Donaldson-Stiff’s evidence “not entirely satisfactory”.
91 The primary judge held (at –) that Donaldson-Stiff experienced distress when he learned of the content of the scab poster. He felt angry and made a complaint about the poster. Donaldson-Stiff described the poster as “petty and childish”. The primary judge also accepted Donaldson-Stiff’s evidence that, as a consequence of the scab poster action, he feared for his safety and the safety of his family (at ).
92 The primary judge did not make a finding as to the extent or duration of the distress and fear experienced by Donaldson-Stiff. There was no finding of any psychological injury, ill health or loss of enjoyment of life.
93 The primary judge held that, although Scott suffered some ostracism from some of his co-workers, he was not ostracised by reason of the scab poster action and nor was an adverse change in his relationship with a co-worker attributable to the scab poster action. The primary judge accepted that the scab poster action had induced in Scott a fear for the safety of himself and his family. Scott’s evidence was that a day or so after reading the poster he started to worry that some individual might do violence to his family or himself. He said that it weighed on his mind that it would only take one person to decide to take matters into his own hands and take some sort of action to pull him into line and teach him a lesson. As the primary judge further recounted at , Scott said that after a week or so he talked himself out of dwelling on those kinds of thoughts.
94 The primary judge also found that Scott was offended by what he regarded as the scab poster’s comparison of himself with Judas Iscariot. Beyond that offence, there was no finding of any emotional distress.
95 The primary judge did not make any finding as to the extent of the offence felt by Scott nor that the feeling of having been offended endured for a particular period. Nor did the judge make a finding as to the duration of Scott’s fear for the safety of himself and his family. However, on Scott’s own evidence, any such fear dissipated after about a week.
96 There was no finding that, as a consequence of the scab poster action, Scott suffered any psychological or other injury nor a finding that his work or personal life had been adversely affected.
97 The primary judge held that any ostracism of Watson by co-workers or any deterioration in his relationship with co-workers was not linked to the scab poster action. Watson’s evidence was that he was really upset when he was told about the poster. Watson said that, as a result of the poster, he felt that his reputation had been damaged and that he could not sleep for a number of nights. He also said that after he found out about the scab poster he became fearful for his safety and the safety of his family. He also said that, because of the poster, he feared that if he left his job he would not be able to get another job on the waterfront.
98 The primary judge accepted Watson’s evidence of his reaction to the poster and also Watson’s fears for his personal safety, that of his family and his fear of not being able to find another job. The judge also held that Watson was distressed by the perception that damage had been done to his reputation. There were no findings of any psychiatric or other injury. Loss of a number of nights of sleep was the only finding of a physical manifestation caused by the scab poster action. The duration of Watson’s fears was not the subject of any express finding.
The penalty judgment
99 The primary judge noted that there was a considerable discrepancy in the submissions of the parties in relation to the amount of compensation which ought to be ordered. The MUA contended that the Court should award compensation of up to $2,500 to each of Daly, Mawbey, Donaldson-Stiff and Scott, and $5,000 to Watson. The Ombudsman contended that each of the five employees should be awarded compensation in the vicinity of $50,000 to $100,000.
100 At , the primary judge said that he approached the question of compensation on the basis that none of the non-striking employees had proved that, by reason of the scab poster action, they suffered any psychological harm by way of adjustment disorders. The primary judge said that, accordingly, he would assess compensation “by reference only to the emotional distress and fear which I accepted, in the principal judgment, that each of the five named employees suffered”.
101 I will return to the primary judge’s consideration of the authorities, but in distinguishing some of those authorities, the primary judge made this observation at :
“An important distinguishing aspect of this case, from the cases to which I have referred above, is that each of the five named employees experienced a continuing fear of physical harm to themselves and their family, and the fear of damage to property. This aspect of the emotional distress experienced by each of the named employees should find expression in the amount of compensation awarded.”
102 Some of those observations do not sit well with the findings made in the liability judgment, which the primary judge said would be the basis for assessing compensation. Not all of the non-striking employees were found to fear harm to themselves. No finding of that kind was made in relation to Daly. No finding was made that Mawbey feared for his family’s safety or, expressly in any event, his own. A finding was made that Mawbey feared a retaliatory response but, in context, that fear was at least primarily concerned with a fear for his property. There was no finding that any of the other four non-striking employees had a fear of damage to property. However, I place little weight on those apparent inconsistencies because it is the extent of the emotional distress experienced, rather than its particular source, that is germane to the proper assessment of compensation.
103 However, the observation that each of the non-striking employees experienced “a continuing fear” is more troubling, unless all that the primary judge essentially meant to emphasise was that the fear was not momentary or ephemeral. I do not consider that by “continuing” the primary judge meant prolonged. That would be contrary to the findings he made in the principal judgment. Daly’s evidence of a prolonged fear appears not to have been accepted. In Scott’s case, his evidence was that the fear had dissipated within around a week. When the findings made about fears for safety are taken together with the awards of compensation made, I do not understand the primary judge to have reasoned that the extent or duration of the fear experienced by Daly, Mawbey, Donaldson-Stiff or Watson was of a different magnitude to that of Scott. To my mind, a fair reading of the reasons as a whole suggests that by “a continuing fear” the primary judge meant a fear which was not momentary but continued for a short period.
104 It was not in contest before the primary judge, nor is it in issue on the appeal, that emotional distress is capable of constituting loss and justifying an order for compensation made pursuant to s 545(2)(b) of the FW Act. But an award of compensation is compensatory and no more: Richardson at  and  (Kenny J, with whom Besanko and Perram JJ agreed). It has no punitive purpose. Its only purpose is to compensate for the loss suffered. The nature of the conduct which led to the suffering may help to shed light on the extent of the suffering experienced by the victim, but the focus of an assessment of compensation is upon the harm actually done: Richardson at . Different individuals will react differently to the same stimulus. Some will suffer more than others and some not at all. An award of compensation for pain and suffering is concerned only with the subjective feelings of the plaintiff: H Luntz, Assessment of Damages for Personal Injury and Death (3rd ed., Butterworths, 1990) (“Luntz”) at [3.2.3].
105 Emotional wellbeing is an intangible not readily or usually valued in monetary terms. It is not a commodity which can be bought or sold. It is in that sense “incommensurable”: Richardson at . The loss of emotional wellbeing or the presence of emotional distress is difficult to assess and imprecision is to be expected. But difficulty of calculation is not ordinarily a basis for either reducing or increasing an award for damages, nor does uncertainty prevent an assessment, provided that some broad estimate can be made: Luntz at [1.9.30].
106 As Kenny J (with whom Besanko and Perram JJ agreed) said at  of Richardson, by reference to observations made by Hayne J in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at , cases in which an award of damages is challenged as “manifestly inadequate” or “manifestly excessive” assume that there is a standard against which inadequacy or excess can be judged. In a passage in Rogers at , which Kenny J cited at , Hayne J said this:
“In searching for the standard … account must be taken of three basic propositions. First, damage to reputation is not a commodity having a market value. Reputation and money are in that sense incommensurable. Secondly, comparisons between awards for defamation are difficult. Every defamation, and every award for damages for defamation, is necessarily unique. Thirdly, because the available remedy is damages, courts can and must have regard to what is allowed as damages for other kinds of non-pecuniary injury.”
107 Kenny J reasoned, at , that the search for the standard against which to measure the “manifest inadequacy” of an award of damages for sexual harassment required consideration of the same or similar matters as those identified by Hayne J in relation to awards for defamation. The same observation may be made in relation to awards of damages for non-economic loss occasioned by other kinds of conduct, including adverse action of the kind with which the primary judge dealt. As in the case of damage to reputation addressed by Hayne J, emotional distress is not a commodity having a market value. Second, comparisons between awards for emotional distress are difficult because every award of damages for emotional distress is necessarily unique. Third, as the available remedy is damages, regard can and must be had to other kinds of analogous non-pecuniary injury. Further, at , Kenny J said this:
“In Qantas Airways Ltd v Gama, French and Jacobson JJ held (at ) that reference to a negligence case in an attempt to “find some basis for an assessment of damages … did not err in principle”. The need for coherence in the law means that, in attempting to compensate victims for comparable kinds of injuries, interconnected fields of law look to one another in establishing a “reasonable” sum by way of compensation. The analogy between sums awarded for pain and suffering and loss of enjoyment of life caused by unlawful discrimination with sums awarded in the tortious context is particularly obvious.”
108 The reasoning of Kenny J in Richardson was that conducting a review of the decided cases for the purpose of providing a range for damages awarded forms part of, but does not constitute the entirety of, the relevant inquiry. Her Honour said that “it can be dangerous to rely too heavily on such a range in assessing the quantum of damages”: at . By quotation of the judgment of Barwick CJ, Kitto and Taylor JJ of O’Brien v Dunsdon (1965) 39 ALJR 78 at 78, Kenny J observed that an assessment should be made of an amount which can fairly be regarded as “reasonable compensation for the injuries and disabilities which a plaintiff has sustained”, and that “the assessment should be made having regard, as far as possible, to the general standards prevailing in the community”.
109 Her Honour concluded thus, at :
“… In making an award, a court necessarily has regard to the general standards prevailing in the community. As indicated above, other awards of general damages for injury of the kind suffered by Ms Richardson may provide some measure of manifest inadequacy since they may provide some guidance as to what contemporary courts have discerned as proper compensation for such an injury according to generally prevailing community standards. Cases in the field of personal injury may be particularly useful because the object of an award of damages for non-pecuniary loss in such cases is much the same as an award of damages under s 46PO(4)(d) of the AHRC Act: see O'Brien v Dunsdon at 78 and Teubner v Humble (1963) 108 CLR 491 at 507 (Windeyer J); and Qantas Airways Ltd v Gama at .”
110 The question, or the “real issue”, as posed by Kenny J at  (and as adjusted for the present case) is this:
“… whether, having regard to the facts as found, the amount fixed by the trial judge was so disproportionately [high] when the facts, as found, are considered that the award cannot fairly be seen as reasonable compensation for the loss and damage suffered by the [appellants] because of [the scab poster action].”
111 Like Kenny J in Richardson (at ), I am unable to discern any basis for thinking that pain and suffering and loss of enjoyment of life should be differently valued because of the type of conduct which brought about the suffering. Whether the cause be sexual harassment, other forms of harassment, bullying or adverse action of various kinds (save that the nature of the conduct may throw some light upon the extent of the harm done), the compensable value of the harm is to be assessed by reference to the pain and suffering and the loss of enjoyment of life experienced by the particular victim. In the present case, the prevailing community standard may be assessed by reference to a wide range of conduct resulting in awards of damages for emotional distress. And, as it turns out, a review of the decided cases suggests that, ordinarily, in the absence of physical or recognised psychological injury or significant loss of enjoyment of life, awards of damages for emotional distress are modest.
112 In Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 (Wilcox CJ, von Doussa and Marshall JJ), Ms Burazin was unlawfully dismissed from her employment. The trial judge found that she had been “extremely distressed” by her treatment at the hands of her employer. The judge also found that “the respondent by its agents behaved arrogantly and contemptuously towards her”. The trial judge awarded $3,000 in compensation. On appeal, the Full Court held that the trial judge was entitled to take into account the shock, humiliation and distress suffered by Ms Burazin in considering the proper amount of compensation to be ordered. Noting (at 156) that there is an element of distress in every termination, and observing that to ensure compensation is confined within reasonable limits restraint is required, the Full Court determined to increase the award of compensation to $5,000 having regard to the circumstance that, upon termination, Ms Burazin had to suffer the humiliating experience of being escorted from the employer’s premises by the police.
113 In Cameron v Warakurna Community Inc  FCA 1260 (Marshall J), an employee who had been unlawfully dismissed was awarded $750 by way of compensation for mental distress occasioned by her termination. On review of the judgment of a Judicial Registrar, Marshall J (at 11) increased the sum awarded by $2,450. Marshall J regarded the distress suffered by the employee was at a magnitude normally associated with a termination of employment.
114 In Evans v Alto Parts Pty Ltd  FCA 601 (Tomlinson JR), an employee of some six years’ standing was unfairly dismissed. His evidence was that on learning of the dismissal he was “shattered”. He had subsequently sought medical assistance for “stress problems”. He was on medication to assist with sleeping. In relation to compensation for distress or injured feelings, a judicial registrar of this Court awarded $7,500.
115 In Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 (Barker J), an Indonesian citizen (Mr Puspitono), working in Australia under a subclass 457 working visa, was dismissed from his employment in contravention of ss 340 and 346 of the FW Act. As a result, Mr Puspitono was forced to leave Australia as he could not find another sponsor to take over his visa. He experienced financial difficulties. He was very distressed at the way in which his employer had treated him. He suffered headaches, stress and vomiting. He saw the doctor three times. Barker J, at , held that the dismissal, and the effect of the negative assessment of Mr Puspitono made by his former employer and conveyed to another employer in Indonesia, caused hurt and humiliation. The judge accepted Mr Puspitono’s evidence that he was distressed and upset to find that, as a result of the adverse assessment, his reputation was such that he struggled to find work in the aircraft maintenance industry in Indonesia. Barker J awarded $7,500 for non-economic loss.
116 In Ucchino v Acorp Pty Limited  FMCA 9 (Jarrett FM), Ms Ucchino was dismissed from her employment including because she was pregnant. The employer’s conduct was held to be in contravention of s 351(1) of the FW Act. She claimed non-economic loss. Her dismissal was difficult for her because of the close community in which she and her children lived. She was embarrassed about her termination. Jarrett FM held that Ms Ucchino experienced the type of distress that accompanies most terminations and declined to include a component for non-economic loss.
117 In Richardson, Ms Richardson was sexually harassed by another employee. She was subjected to a humiliating series of slurs, alternating with sexual advances, building into a more or less constant barrage of sexual harassment over a period of months. The trial judge described the unlawful conduct as “persistent and ultimately callous”. The sexual harassment occasioned distress that manifested in a noticeable change in Ms Richardson’s demeanour and in significant physical symptoms. The conduct caused psychological injury: Ms Richardson suffered a chronic adjustment disorder with mixed features of anxiety and depression. The psychological damage was “not insignificant”. The sexual harassment caused injury to Ms Richardson’s sexual relationship with her then partner. The Full Court determined that the primary judge’s award of $18,000 was manifestly inadequate and awarded $100,000.
118 The review of the cases undertaken by Kenny J in Richardson is instructive and included the cases I now turn to consider. In Lee v Smith  FMCA 59 (Connolly FM), Ms Lee was subjected to months of sexual propositioning and other unlawful conduct which culminated in a sexual assault. She was found to have suffered “very significant pain, suffering, hurt and humiliation” over the five or six years before trial, had been deprived of the enjoyment of life, had been unable to work, suffered fear and had been, at times, suicidal. She was awarded $100,000. In Poniatowska v Hickinbotham  FCA 680 (Mansfield J), a general damages award of $90,000 was made. Ms Poniatowska was subjected to sexual propositioning, inappropriate comments by her supervisor and the receipt of explicit pornographic messages on her telephone from a co-worker. At the time of the award, she remained incapacitated for work by her psychiatric illness. She had experienced years of considerable personal distress and unhappiness caused by her underlying psychiatric condition (an adjustment disorder with mixed anxiety and depression) brought on by the sexual harassment. Kenny J accepted at  of Richardson that, in both of those cases, the victims sustained more severe injuries than Ms Richardson, which suggests that a higher award of compensation may have been made in each of those cases had the court had the benefit of the Full Court’s judgment in Richardson.
119 At –, Kenny J referred to Willett v Victoria  VSCA 76 (Tate and Priest JJA). As a result of being exposed to bullying and harassment in her employment, Ms Willard suffered from ongoing and persistent major depressive disorder which, while varying in severity from mild to moderate, affected her in an invasive way on a daily basis requiring significant doses of anti-depressant and associated medication which rendered her permanently incapacitated for her pre-injury work as a police officer. She had been deprived of the career she had chosen, in which she was proficient, and which she found fulfilling. Ms Willard was awarded $250,000 as compensation for her pain and suffering and loss of enjoyment of life.
120 At , Kenny J discussed Swan v Monash Law Book Co-operative (2013) 235 IR 63 (Dixon J). Ms Swan had been exposed to an unsafe workplace in which she was subjected to bullying, harassment, and intimidating conduct. This conduct caused Ms Swan to suffer a mental “breakdown”. Her injuries were held to have been “extremely onerous and deleterious”. She suffered from an adjustment disorder/depressive condition, continuing anxiety and depression, somatic symptoms including temporomandibular joint dysfunction with bruxism and tinnitus, chronic insomnia, pain, including migraine and headache, anxiety, a disabling sensitivity to antidepressants, high blood pressure, and debilitating rashes and skin irritations that all required separate diagnosis and separate ongoing management and treatment. The trial judge was satisfied that Ms Swan remained substantially compromised in most aspects of her life, which had been reduced to one of isolation and disconnection from family and friends and from the world around her. She had lost her personal independence, lost her confidence and lost a capacity to take interest in and derive pleasure from the stimulus of life. It was held that she suffered a substantial loss of enjoyment of life, with much pain and suffering, both mental and physical. She was awarded $300,000.
121 At  of Richardson, Kenny J referred to Nikolich v Goldman Sachs J B Were Services Pty Ltd  FCA 784 (Wilcox J). Mr Nikolich recovered damages for breach of his employment contract with an employer in the finance industry, in respect of loss and damage caused by workplace bullying and harassment. It was held that Mr Nikolich had “suffered, and perhaps continues to suffer, a major depressive disorder”, although his psychological condition would not ultimately prevent him from returning to the finance industry. As Kenny J observed, when fixing an award of general damages at $80,000, Wilcox J described Mr Nikolich as extremely distressed and disturbed by the way in which he had been treated, which had caused him to suffer a mental illness from which (at the time of the trial) he had yet to fully recover. His psychological condition appeared to have been a major factor in the break-up of his marriage and separation from his children. The trial judge observed that it must have adversely affected his professional reputation. Whilst Mr Nikolich’s psychological disability was not permanent, Wilcox J thought that it may take him some time to obtain employment and return to normal life.
122 In Kraus v Menzie  FCA 3 (referred to in Richardson at ), Ms Kraus was employed as a receptionist by a company owned by Mr Menzie. She alleged that Mr Menzie had sexually harassed her on numerous occasions by making unwelcome advances and engaging in other unwelcome conduct. She had limited success on her claim. Mansfield J accepted that she had been, at times, in a consensual sexual relationship with Mr Menzie. However, Mansfield J held that Mr Menzie had sexually harassed Ms Kraus by providing her with inappropriate gifts, by urging her to swim with him on one occasion, by attempting to share a cabin bunk with her whilst on a work trip and by sending sexually explicit phone messages and images. Mansfield J was, however, not satisfied that the harassment had caused Ms Kraus “any real detriment”: it played no role on the onset of her psychiatric illness and it “barely had any adverse personal effect upon [her]”. Ms Kraus was awarded $12,000 for non-economic loss.
123 In Walker v Citigroup Global Markets Australia Pty Ltd (2006) 233 ALR 687 (Gyles, Edmonds and Greenwood JJ) (referred to at  of Richardson), a Full Court substituted for a trial judge’s award of $5,000 general damages of $100,000. The Full Court accepted that Mr Walker had suffered “a considerable dislocation of his life with serious long-term effects” as a result of the unlawful conduct to which he had been exposed. Mr Walker’s marriage had broken down and he had lost the day-to-day company of his children in the year after the unlawful conduct in question. Damage to his reputation was relevant although, as Kenny J noted at , that was not the focus of the Full Court in determining to increase the damages awarded.
124 In RailPro Services Pty Ltd v Flavel  FCA 504, Perry J substituted, for an award of $25,000 by a judge of the Federal Circuit Court, an award of $7,500. The award was for hurt and distress occasioned by the dismissal of an employee in contravention of s 340(1) of the FW Act. The employee, Mr Flavel, was a train driver involved in a train accident. As a result of the accident he suffered post-traumatic stress disorder and moderately-severe depression. Whilst suffering from those conditions, he was asked to undertake a driving assessment and refused to do so. His refusal occurred because he was not feeling confident that he could carry out the assessment, as he had been feeling sick, dry in the mouth, highly anxious and wanted to vomit. He had considered that he could not perform a driver’s duties safely, and reluctantly elected to be relieved of the driving duties. His employment was terminated at a meeting shortly thereafter for refusing to undergo the assessment without reasonable cause.
125 At , Perry J noted that the trial judge’s reasons “do not sufficiently expose the reasons for so high an award of $25,000 for distress, hurt and humiliation”. Her Honour nevertheless considered that the circumstances of the dismissal warranted an award for distress having regard to a number of factors including the circumstances in which the notice of termination was given and the deterioration in Mr Flavel’s mental condition after the dismissal, which was suggestive of the distress and hurt which had been felt upon being dismissed. The unchallenged evidence of Mr Flavel’s psychiatrist was that his functioning had deteriorated alarmingly after he was dismissed (at ).
126 In Sayed v Construction, Forestry, Mining and Energy Union (2015) 327 ALR 460 (Mortimer J), a trainee organiser employed by a union was dismissed. Mortimer J held that, by reason of the organiser’s political opinion, he was dismissed from his employment in contravention of s 351 of the FW Act. At  and in relation to non-economic loss, her Honour said:
“I consider the respondent should be ordered to pay the applicant a modest amount of general compensation for the unlawful way in which it terminated his employment. Taking into account the absence of any probative evidence other than the applicant’s display of despondency, disappointment and anger, but recognising that he relocated from Melbourne to Queensland and then to Perth, and was dismissed summarily and placed directly on a plane back to Melbourne from Sydney, having been compelled to pack up and leave Perth at short notice, any reasonable person in the applicant’s position would find this humiliating and distressing. I propose to award the applicant $3000 in compensation for humiliation and distress.”
127 In the case at hand, non-economic loss was suffered in the absence of any physical injury or psychiatric illness. At common law, and save for exceptional circumstances, a person is not liable in negligence for being a cause of distress, alarm, fear, anxiety, annoyance, or despondency, without any resulting recognised psychiatric illness: Tame v New South Wales (2002) 211 CLR 317 at  (Gleeson CJ),  (Gaudron J), ,  (Gummow and Kirby JJ), and  (Hayne J). Negligence cases are therefore not likely to be of much assistance in throwing up circumstances for the assessment of compensation for emotional distress comparable to those of this case. I turn, then, to other fields.
128 Cases in which compensation for non-economic loss has been awarded pursuant to s 85B of the Sentencing Act 1991 (Vic) (“Sentencing Act”) have the potential to provide some guidance. That is because, under the scheme for compensating victims of crime provided for by ss 85A and 85B, injury is defined to include “grief, distress or trauma or other significant adverse effect”. Section 85B empowers a court to require an offender to pay compensation to a person who has suffered injury as a direct result of the offence. A number of claims under s 85B have followed contraventions by employers of the Occupational Health and Safety Act 1985 (Vic) (“OHS Act”). In such cases, employees and family members of employees harmed at work are often claimants. Like the present case, anxiety or concern for family members is, to some extent, an element of the factual circumstances attending many of those cases.
129 In Director of Public Prosecutions v Esso Australia Pty Ltd  VSC 222 and Director of Public Prosecutions v Esso Australia Pty Ltd  VSC 232, Cummins J dealt with twenty-one applications for compensation pursuant to s 85B. Each of the applicants was a victim who had suffered injury (as defined by s 85A) as a result of breaches of the OHS Act by Esso. The convictions related to Esso’s failures to provide and maintain, so far as was practicable, a safe work place and safe systems of work at a major gas-processing facility at Longford, Victoria. On 25 September 1998, as a consequence of Esso’s failure, a catastrophic rupture of plant occurred resulting in explosions and fires in which two employees were killed and many others seriously injured.
130 The claimants for compensation dealt with by Cummins J fell into two broad categories: they were either employees of Esso, or family members of employees. Cummins J noted (at  of  VSC 222) that he had had regard to a number of determinations as to the appropriate compensation to be awarded in serious cases, observing that “[t]he subsisting guidance which is to be derived from the authorities is that on the one hand one must not be overborne with emotion and on the other hand one must not be insensitive to the realities of suffering and distress”.
131 Most of the employee applicants were awarded $100,000. Two were awarded $150,000. In each case, the injury suffered included post-traumatic stress disorder (“PTSD”) and in most cases the psychiatric evidence was that the PTSD was chronic. To give an example, Mrs Keryn Conners was directly exposed to the disaster. As his Honour described it, she was exposed to the grim facts of death and injury and to the fear of uncertainty of the missing. She was exposed to the aftermath of the explosions on a daily basis. Cummins J found that “[h]er fears and apprehensions continue[d] daily and nightly”. Mrs Conners was held to suffer from a chronic PTSD of moderate degree which had stabilised by the time of the trial (some four and a half years after the disaster), although his Honour described her as a person who remained “highly stressed and distressed”. She was awarded $100,000. Another employee, Mrs Angela Jones, was held to suffer from chronic PTSD of mild to moderate degree accompanied by reactive depression. She had been directly exposed to the horror of the disaster and was at the epicentre of organising to contain and limit its effects. It was held that she remained highly stressed including because of a special, close, and longstanding relationship she had with an employee who was killed. She was awarded $150,000. Another employee, Mr Michael Shepard, was also awarded $150,000. He was present at a heat exchanger when it exploded. He was blown off his feet and rendered unconscious. He suffered from a chronic PTSD of moderate degree.
132 Of greater relevance to facts raised by this case are the awards of compensation to those applicants who were family members of employees of Esso and who had suffered as a result of the offences. Most of those applicants were awarded $25,000 in compensation, the range being $20,000–$50,000. So, for example, Mr Stuart Jones, the husband of Mrs Jones (dealt with above) provided care and support to his wife on a continuing basis. The strain and effect of the trauma on his wife was held to have had a deleterious effect on the family situation. A psychiatrist opined that Mr Jones suffered from chronic anxiety of mild degree. He did not require psychiatric treatment apart from joining his wife in counselling. A report of a therapeutic counsellor concluded that Mr Jones suffered a major depressive episode. Mr Jones was awarded $25,000.
133 Mrs Vicki Miller was the wife of an Esso employee. She separated from her husband in circumstances where it was held that both she and her husband were seriously afflicted by the disaster and ultimately separated after their relationship deteriorated. Mrs Miller was held to have suffered considerable psychological pain as a result of the explosions and their effect on her husband. A psychiatrist opined that she suffered an anxiety state and reactive depression of moderate degree and had experienced considerable pain and suffering. The diagnosis of depression and high anxiety was confirmed by several other medical practitioners. Cummins J found that she had suffered an especially harmful consequence of the explosions and awarded her $50,000.
134 There were eight family member applicants who were each awarded $25,000. These claimants were held to have been afflicted by the deleterious effects of the disaster upon their partners (or, in one case, father). In each case, psychiatric evidence supported a finding of an anxiety state sometimes described as chronic, sometimes as mild, and sometimes as both chronic and mild. On some occasions a diagnosis of depression was also present.
135 As I have stated, Mr Shepard was present during the explosion, was rendered unconscious and suffered chronic PTSD. His wife, Mrs Elizabeth Shepard, was also a claimant. She received the lowest award, of $20,000. A psychiatrist’s report concluded that Mrs Shepard did not suffer from any defined emotional disorder. However, Cummins J was satisfied that Mrs Shepard had experienced pain and suffering. She was described as a stoic person who had loyally supported her husband through their difficulties since the disaster occurred (some four and a half years earlier).
136 In Director of Public Prosecutions v Esso Australia Pty Limited  VSC 513, Cummins J considered ten further claims of pain and suffering consequent upon the disaster at Longford. His Honour awarded $50,000 to each of three daughters of an employee who was killed in the disaster. One, a Ms Lyons, was diagnosed as mildly depressed, with reactive depression with anxiety, and as being close to also suffering from PTSD. Ms Lyons was held to be distraught, and grief-stricken, with her sleep and mood substantially affected by her father’s death. Medical evidence was that her health had significantly deteriorated since the death of her father. She needed psychological counselling. She was taking antidepressant medication. The second daughter, Ms Madalin, was diagnosed by a psychiatrist as suffering from a profound and complicated grief reaction and as being emotionally distressed, requiring some forty consultations with a psychologist. The third daughter, Ms Lowery, was held to have had a pre-existing depressive illness, aggravated by her father’s death. She was also diagnosed with PTSD.
137 An employee, Mr Darren Borthwick, was at the site of the explosion. He was diagnosed by a psychiatrist as suffering intrusive thoughts, depression and anxiety and as having probably developed PTSD, which had gradually subsided. His employment was adversely affected and his marriage remained fragile. He was awarded $100,000. Another employee, Mr Martin Jackson, was also at the site at the time of the explosion. He twice went into the inferno to help others. He was later awarded a personal bravery medal by Victoria’s Governor-General. As a consequence of his actions he suffered physically to his breathing and suffered significant psychiatric injury. He suffered chronic PTSD, nightmares, trauma, grief, excessive drinking, irritability, nervousness, panic and intolerance. He was awarded $200,000. His wife was found to have been one of many women who had “loyally provided succour and support” to their husbands. She had had to cope with, and guide her children through, her husband’s anxiety and depression which had a deleterious effect upon her. She had suffered anxiety and depression. Cummins J held that she had endured a very substantial burden and suffering. She was awarded $50,000.
138 The three sons of Mr Peter Wilson, who was killed by the explosion, were each awarded $75,000. One suffered from a chronic adjustment disorder, with anxiety and depression. No formal psychological diagnosis was in evidence in relation to the other two sons. However, Cummins J took the view that each son had been grievously afflicted by the loss of a close and loving relationship with their father. Each continued to suffer from both the loss of their father and from the visible effect of that loss upon their mother. His Honour held that it was quite apparent that the two brothers for whom there was no psychological diagnosis both suffered significant anxiety and depression and, like the third brother, had significant psychological sequelae that would continue.
139 Finally, Mr Wilson’s widow was awarded $300,000 in compensation. It was held that she had a deep and continuing grief and loss. She suffered a chronic adjustment disorder, depression and anxiety. The effects were held to be very substantial and permanent.
140 In Director of Public Prosecutions v Energy Brix Australia Corporation Pty Ltd (2006) 14 VR 345, the Court of Appeal of the Supreme Court of Victoria considered whether awards for compensation made under s 85B of the Sentencing Act were manifestly inadequate. Vincent JA, with whom Buchanan and Neave JJA agreed, made an observation at  that is pertinent to any comparative assessment to be made with the present case, namely that the fact that an injury or loss has resulted from the commission of a crime cannot be ignored. His Honour’s point was that there is a difference, all other things being equal, between harm brought about by natural causes, harm brought about by civil wrongdoing, and the same harm brought about by criminal conduct: the latter often involves the deepest sense of outrage and therefore has a more acute impact on the lives of the individuals concerned. His Honour also noted at  that there obviously cannot be a yardstick by which the extent of personal grief or distress can be measured, nor therefore a method of conversion of a human emotion or psychological reaction into an amount of money. Vincent JA recognised that, in that context, widely-differing views may be held as to an appropriate award and that an appellate court must be extremely reluctant to intervene in such cases. Nevertheless, the Court of Appeal did intervene in that case.
141 The claimants were two adult children of a worker killed whilst performing boiler cleaning and servicing operations at a power station operated by the offender. He died when he was “literally buried and burned beneath an inferno comprising seven cubic metres of red hot ash and burning char”. When the worker’s 21-year-old daughter discovered that her father had been killed, she was deeply shocked and it took some time for her to comprehend what she had been told. A psychiatrist opined that the manner in which she learnt of her father’s death and the nature of the accident caused the daughter considerable distress and that certain of her symptoms were consistent with her suffering from PTSD, although she did not present with the complete clinical picture for that disorder. The psychiatrist described her condition as “suffering from a residual adjustment disorder, accompanied by anxiety”. The primary judge had assessed the appropriate compensation at $20,000. The Court of Appeal substituted an award in the sum of $50,000.
142 The son of the deceased worker was 22 years old at the time of his father’s death. A psychiatrist opined that he had experienced a natural sense of grief at the loss of his father, although he had not been particularly close to his father. The nature of his father’s death had caused distress although the son’s main concern appeared to be the welfare of his mother and sister, who had been closer to his father than he had been. The psychiatrist opined that it could not be said that the son was suffering from any well-defined nervous disorder, although he was naturally concerned about his mother and her welfare, as evidenced by the fact that he had chosen to return home in an effort to support her. The psychiatrist concluded that the father’s death and the circumstances in which the son had learnt about it had caused significant pain and suffering at the time, although the son had come to terms with that situation. The primary judge assessed the compensation to be awarded at $15,000. The Court of Appeal increased the sum awarded to $35,000.
143 In further observations made by Neave JA at , her Honour observed that there had been a number of orders for payment of sums in excess of $35,000 to relatives of deceased victims in circumstances where injuries had been caused by breach of occupational health and safety requirements. Her Honour also referred to a database of awards for compensation for pain and suffering and mental distress maintained by the Office of Public Prosecutions. In relation to people who had suffered direct harm as a result of violent offences such as sexual assault and intentional infliction of injury, the database showed that the awards were often under $20,000. Her Honour thought, however, that in part that may reflect the statutory requirement (in s 85H(1) of the Sentencing Act) to take into account the financial circumstances of the offender and the nature of the burden that will be imposed by the obligation to make the payment. Neave JA concluded, at , that a comparison with other orders which had been made under s 85B, in the context of industrial accidents, persuaded her that the orders for compensation made by the primary judge “[fell] below the level of award that could be made in the exercise of a sound discretionary judgment”.
144 Finally, I should add in relation to the cases that I have surveyed concerning s 85B of the Sentencing Act that none appear to be cases in which the amount awarded was affected by the financial circumstances of the offender.
145 In the penalty judgment, the primary judge considered Australian Licensed Aircraft Engineers Association and Richardson. It is likely that the primary judge also considered the cases surveyed in Richardson, although specific mention was only made of Kraus.
146 The extent to which the primary judge was influenced by the award in Kraus is not clear. He may well have been influenced. An award of $12,000 for “barely … any adverse personal effect” may have been viewed as justifying the significantly-higher awards made to the non -striking employees. To my mind, however, the survey of the cases undertaken above suggests Kraus to be an outlier.
147 The primary judge distinguished Australian Licensed Aircraft Engineers Association, where $7,500 was awarded for the emotional distress associated with termination of employment, the loss of a capacity to stay in Australia, reputational damage and loss of employment prospects. Each of the stated bases upon which that case was distinguished is, with respect, doubtful. The first is that, in Mr Puspitono’s, case “there was no public element to his distress and humiliation” (at ). However, it does not follow that one type of offensive conduct delivered publicly is necessarily more hurtful than another delivered privately. It all depends on the subjective reaction of the victim. The second basis (at ) is that in Australian Licensed Aircraft Engineers Association, “there was no element … of Mr Puspitono experiencing a continuing fear of physical harm to himself or his family or of property damage”. That may be so, but again and with respect, the source of emotional distress is not determinative of the extent of the suffering actually experienced. An individual may be little affected by a fear of physical harm but devastated by a loss of reputation.
148 To my mind, taking into account the prevailing community standard as illustrated by the cases surveyed (and putting Watson’s position aside for the moment) I do not consider that the findings made about the extent of pain and suffering of the non-striking employees are different in magnitude from the extent of pain and suffering (and the loss of enjoyment of life) experienced by Mr Puspitono or, indeed, that suffered by Mr Flavel in RailPro. That suggests that for Daly, Mawbey, Donaldson-Stiff and Scott an award of $7,500 would have been appropriate. For reasons shortly to be discussed, I regard $10,000 as an appropriate award for Watson.
149 However, as earlier stated, an appeal court ought not interfere with the sum fixed by the trial judge simply because it considers it would have fixed some other amount. Interference is justified where, by reference to the general standards prevailing in the community, the award cannot fairly be seen as reasonable compensation for the loss and damage suffered. Or, in other words, it is justified where the award is manifestly excessive.
150 The survey undertaken above (and putting Kraus aside) shows that non-economic loss not involving a recognised psychological disorder or considerable and prolonged dislocation or loss of enjoyment of life has attracted awards in the range of nil to $7,500. As I have said, the extent of distress found in the cases at the higher end of that scale is not, to my mind, different in magnitude to the extent of distress found by the primary judge in this case. The magnitude of pain and suffering found in the cases where in the order of $20,000 has been awarded is not comparable to that found for Daly, Scott, Mawbey or Donaldson-Stiff. Each of the family members awarded $25,000 in Esso was diagnosed as suffering from a psychological disorder. Taking Mr Jones, for example, he suffered chronic anxiety of mild degree and had to endure the deleterious impact upon his family life of a partner with chronic PTSD, who four and a half years after the onset of her illness, remained “highly stressed”. In contrast, Scott was “offended” and started to worry that violence might be done to himself or to his family but “after a week or so he talked himself out of dwelling on those sorts of thoughts”. The extent of Scott’s pain and suffering is plainly not in the same league as that of Mr Jones.
151 The survey shows that the pain and suffering and dislocation to life caused by the loss of a father killed as a result of criminal offending has been compensated within the range of $35,000 to $75,000. Watson’s award of $40,000 exceeds the $35,000 awarded to one such victim and is not very distant from the $50,000 awarded, for example, to the 21-year-old claimant in Energy Brix whose father was burnt beneath an inferno of hot ash and char and who, as a result, suffered psychological injury. Again, Watson’s pain and suffering is plainly not in the same category. The same point could be made by reference to the many cases in which $100,000 or thereabouts was awarded to employees the subject of serious and sustained sexual harassment, workplace injury or wrongful termination, where one or a combination of psychological injury and serious dislocation of life was suffered. Watson’s pain and suffering (of which I will say more shortly) does not approach half of the pain and suffering experienced by those victims. To my mind, it is simply not on the radar of serious harm of that kind.
152 Returning to Watson’s circumstances, as is already apparent, I regard the award made for Watson as plainly disproportionate to the findings made of his pain and suffering. I accept, however, that those findings support a higher award of compensation than for the other non-striking employees.
153 Only Watson gave evidence of any physical symptoms, although slight. He was unable to sleep for a number of nights. That evidence appears to have been a basis for Watson receiving twice the compensation received by the other non-strikers, together with the “particular outrage” experienced by Watson because he had been falsely accused of refusing to strike. However, that was not the only basis, as – of the penalty judgment records:
“ Mr Watson was unable to sleep for a number of nights after he found out about the scab poster. He felt a particular outrage because he had not worked during the strike and he had been falsely denigrated by Mr Tracey as having done so. When he sought an explanation from Mr Tracey as to why he was named in the scab poster and sought an apology from Mr Tracey, Mr Tracey insulted Mr Watson and refused to give an apology. Mr Watson's emotional distress was further exacerbated by the fact that Mr Tracey had told him that he would not be able to work again in the maritime industry in Western Australia and, on the basis of the threat, Mr Watson changed his plans which had been to work overseas for some time before returning to Australia. Further, Mr Watson feared that he and his family would suffer harm at the hands of disgruntled workers.
 In my view, the sum of $40,000 is an appropriate and reasonable award of compensation for Mr Watson.”
154 In taking into account the effect upon Watson of Tracey’s insult, Tracey’s refusal to apologise to Watson, and Tracey’s threat made to Watson that he would not work in the maritime industry in Western Australia, and in taking into account the consequence for Watson of that threat, the primary judge took into account harm which was not occasioned by the scab poster action. That aspect of the harm suffered was a consequence of Tracey’s underlying view that Watson was a strike-breaker. Whilst that view was reflected in the poster, the scab poster action was different conduct and, with respect, it was erroneous for the primary judge to have attributed the harm inflicted by Tracey’s verbal conduct (which was not the subject of the proceeding), to the scab poster action (which was).
155 In any event, the award of $40,000 is manifestly excessive. Taking into account Watson’s physical symptomology and the “particular outrage” experienced by Watson resulting from being wrongly accused, an award of $10,000 should be substituted. As I have already stated, I would substitute $7,500 for the awards of $20,000 made to Daly, Mawbey, Donaldson-Stiff and Scott.
156 The MUA made two submissions challenging the penalties imposed by the primary judge of $80,000 for the MUA and $15,000 for Tracey.
157 Before addressing the MUA’s submissions, I should set out  of the penalty judgment because, contextually, it is important. At , the primary judge said:
“As a preliminary matter, I observe that each of the parties accepted that the imposition of the penalty should be approached on the basis that there were five separate contraventions of s 346 of the Fair Work Act by each of the MUA and Mr Tracey, on the basis that adverse action which was taken against each of the employees, constituted a separate contravention. It was accepted that s 557 of the Fair Work Act had no application to a contravention of s 346 of the Fair Work Act. Each of the parties also accepted that there were common elements in the contravening conduct in that Mr Tracey was the main protagonist and all of the named employees were named in the same poster; and that, therefore, these circumstances of the case could be addressed by the application of the totality principle.”
158 The MUA’s first contention was that the level of commonality between the individual contraventions was high and needed to be properly taken into account. It was contended that the primary judge had failed to do that, with the consequence that the appellants were punished twice for the commission of the elements that were common as between the individual contraventions. As to double punishment, reference was made to Pearce v The Queen (1998) 194 CLR 610.
159 I am not persuaded that the contention has force. First, it does not point to any failure by the primary judge to take into account the common elements. The existence of common elements in the contravening conduct was accepted by the parties and acknowledged by the primary judge at . It was also accepted (as  records) that the commonality could be addressed by the application of the totality principle. The primary judge applied the totality principle, as – of the primary judge’s reasons in the penalty judgment record. As a result, the penalty that the primary judge would have otherwise imposed was reduced by 35.4 per cent in relation to the MUA and 39.4 per cent in relation to Tracey. Those reductions are not insubstantial and, I would infer given what was said at , they were made in recognition of the common elements in the contraventions found and so as to avoid punishing the appellants for the commission of the elements that were common.
160 The MUA’s contention is that the reductions made were insufficient. That, as it appears to me, is really no more than a submission that the primary judge should have given more weight to the common elements of the contraventions than the weight actually given. However, a complaint of that kind in relation to a discretionary judgment should not find favour on appeal. As Middleton and Gordon JJ said in Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461 at  said:
“Complaints about too much weight or insufficient weight given to particular matters in the exercise of the sentencing discretion do not fall within any of the kinds of errors identified in House v The King (1936) 55 CLR 499: see [30(4)] above. They are not the kinds of errors that an appellate Court is or should be concerned with in a sentencing appeal. A sentencing appeal is not a rehearing.”
161 The second contention made by the MUA is that the penalties imposed were manifestly excessive.
162 At  the primary judge recorded his conclusion that each contravention attracted 75 per cent of the maximum available penalty. Thereafter, the primary judge applied the totality principle to provide an overall reduction. The MUA contended that the penalties were unjustifiably set at the high end of the available range leaving little room for penalising more serious behaviour with much more significant effect. The submission runs against the following observation made by Ryan J in Construction, Forestry, Mining and Energy Union v Stuart-Mahoney  FCA 56 at :
“The penalty imposed on the CFMEU was 75 per cent of the maximum pecuniary penalty prescribed by s 807 of the WR Act for contravention of a civil remedy provision, including s 797(3). It may be said to be in the middle of the higher end of the range. I do not consider that a penalty at 75 per cent of the maximum should necessarily be reserved for the worst category of cases. There is clearly room in the upper 25 per cent for penalising more serious unmitigated infractions.”
163 I would agree with the MUA’s submission that one can readily conceive of far more significant detrimental effects being inflicted upon individuals by adverse action in contravention of s 346 of the FW Act. But, unlike the assessment of damages, the assessment of a penalty involves wider considerations than the extent of harm caused by the contravening conduct. In such an assessment, the egregious nature of the conduct and the deliberateness with which the harm was inflicted (amongst other factors) will have a bearing upon where, on the scale of seriousness, the particular contravention should be marked.
164 The primary judge found that the scab poster action was “an act of vengeance” taken against employees for exercising a lawful right (at  of the penalty judgment); that it was taken in anger by persons motivated to “exact vengeance” (at ); that it was vindictive action taken by senior officials in the knowledge and with the intention that it would cause marginalisation, emotional distress and fear (at  and ); and, that the conduct was carried out for “arbitrary or base motives” (at ). Those findings were regarded by the primary judge as giving rise to “a serious contravention of s 346” (at ). The primary judge was also of the view that the scab poster action involved “an abuse of power by the powerful against the vulnerable” (at ). His Honour considered that there was a need for a penalty which included a “very substantial element” of specific deterrence (at ).
165 An assessment as to whether the penalties imposed were manifestly excessive must be conducted by reference to the findings made by the primary judge. The findings I have recounted above were not challenged. The holding of the primary judge that those findings warrant that the contraventions be characterised as serious, and as attracting 75 per cent of the maximum penalty, does not bespeak any error sufficient to support a conclusion that the penalties imposed were manifestly excessive.
166 In my opinion the MUA’s challenges in respect of liability and penalties must fail. However, in my judgment ground 5(a) of the MUA’s notice of appeal, alleging that the awards of compensation were manifestly excessive, should succeed. I would allow the appeal in respect of compensation only, and substitute the figures I set out above at .
I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.
Dated: 11 August 2016