FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The BKH Contractors Appeal)

[2020] FCAFC 9

ORDERS

THE COURT ORDERS THAT:

1.    Appeal grounds 3, 14 and 15 be upheld.

2.    Declaration 17 made on 15 March 2018 be set aside.

3.    Order 2 made on 13 November 2018 be amended to read “The Court orders that the Second Respondent, Darren Taylor, pay a penalty of $8,000 to the Commonwealth within 28 days of making these orders”.

4.    Orders 9 and 10 made on 13 November 2018 be set aside.

5.    The appeal otherwise be dismissed.

6.    The stay order (order 11 made on 13 November 2018) be discharged.

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

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    This is an appeal against two judgments: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42 (the liability judgment (LJ)) and Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The BKH Contractors Case) (No 2) [2018] FCA 1563 (the penalty judgment (PJ)).

2    Not all of the respondents to the primary proceedings are appellants in this appeal. The grounds of appeal set out below (at [5]), excluding particulars) identify the appellants. They include the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and certain of its officers and employees, including Messrs Taylor, Kera, Greenfield and Collier.

FACTUAL BACKGROUND

3    To set the context to the grounds of appeal, it is convenient, first, to outline the factual background to the case that was put before the primary judge. His Honour described that in very summary form near the outset of his liability judgment in the following terms:

6    … the dispute between the parties largely focusses upon building sites at Rhodes (the “Rhodes Site”) and Wolli Creek (the “Wolli Creek Site”) in Sydney. These were building sites at which construction work was being undertaken by companies within the BKH Group (“BKH”), that Group including:

•    Wexdek Formwork Pty Ltd, trading as BKH Contractors (“BKH Contractors”);

•    Conbuild Services Pty Ltd (“Conbuild”);

•    Ultrabuild Group Pty Ltd (“Ultrabuild”);

•    Concrete Structures Group (“CSG”); and

•    Corach Holdings Limited.

BKH Contractors had been engaged to perform concrete placement work at the Rhodes Site. Conbuild and Ultrabuild also supplied labour to that project. CSG had been engaged to perform concrete placement and formwork at the Wolli Creek Site. BKH Contractors, Conbuild and Ultrabuild supplied labour to CSG for that project. BKH was also performing work at other sites, including at Darling Harbour and Barangaroo in Sydney.

7    Of relevance to the dispute was the fact that by mid-2014 an existing enterprise agreement was due to expire. The Commissioner alleges that the [CFMMEU] by one or other of the individual Respondents made demands upon BKH, requiring it to sign an enterprise agreement on terms demanded by the [CFMMEU]. At the heart of the dispute was the action taken by one or other of the Respondents to secure agreement to the terms of the enterprise agreement the [CFMMEU] was proposing and, in particular, agreement as to the payment to workers of a site allowance.

4    Later in the liability judgment, the primary judge set out the chronology of some of the events that were central to the contraventions he found against the appellants (respondents before his Honour) as follows:

97    … the chronology of events – or so the Commissioner maintained – supported the conclusion that the action being taken at the Rhodes Site and the Wooli Creek Site was taken by the [CFMMEU] for the very purpose of securing an enterprise agreement which included payment of site allowances. This chronology started with:

•    a meeting held in June 2014 and the voting down of the [CFMMEU’s] proposed enterprise agreement in February 2015.

Thereafter, the events:

•    escalated, including the action taken at the two construction Sites

and only ceased:

•    in March 2015 when agreement was reached between the [CFMMEU] and the BKH Group.

Interspersed between June 2014 and March 2015 were a series of further meetings.

98    By way of an overview, the June 2014 meeting was attended by an officer of the [CFMMEU], Mr Taylor, and a number of formwork companies. Although what was said at that meeting is of relevance and is the subject of competing accounts, one thing is certain – a copy of the [CFMMEU’s] proposed enterprise agreement was made available to the companies that attended. But the inclusion in that proposed agreement of a site allowance met with opposition.

99    By 10 March 2015, Mr O’Sullivan had prepared an alternative version of the [CFMMEU] agreement which (inter alia) deleted the site allowance clause.

100    The agreement being proposed by the [CFMMEU] was put to a meeting of workers in February 2015. But the workers “voted it down”. Thereafter, in March 2015, industrial disruption occurred at two BKH sites in Sydney – one at the Rhodes Site; the other at the Wolli Creek Site. That action, the Commissioner alleged, was pursued by the [CFMMEU] for the purposes of “smashing” those who opposed its proposed form of the enterprise agreement. The industrial action only ceased on 17 March 2015 when, as the Commissioner would have it, agreement was reached between BKH and the [CFMMEU] as to (inter alia) the payment of a site allowance. The Commissioner maintains that the action pursued by the [CFMMEU] and its officers contravened a number of provisions of the Fair Work Act.

(Emphasis in original)

GROUNDS OF APPEAL

5    Turning then to the grounds of appeal, grounds 1 to 4 inclusive below concern the liability judgment and grounds 5 to 15 inclusive (excluding grounds 9 and 11, which were abandoned) concern the penalty judgment.

Ground 1 (Declarations 14, 16 and 17, Penalty Orders 2 and 3) [affecting Taylor and Kera]

The primary judge erred in finding that there was a threat to take action which would have the effect of prejudicing the independent contractor in relation to a contract for services. The requirements to be proved in a case of adverse action under s.340, with reference to s.342 Item 7(c) were set out at [28] of [LJ]. The Court found at [331] of [LJ] that BKH was an independent contractor. It was, however, necessary to identify and establish the particular contract for services and prove prejudice in relation to it: Pomare Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191 at [109] – [111]. The finding made by the primary judge was made in the absence of evidence except for an irrelevant contract between CSG and Probuild at Wolli Creek. The contraventions alleged were set out at paragraphs [118] to [119] of the Third Further Amended Statement of Claim (“TFASOC”).

Ground 2 (Declarations 10 and 12, Penalty Order 1) [affecting the CFMMEU]

The primary judge erred at [338] of [LJ] in finding the CFMMEU separately liable in respect of the contraventions of Taylor and Kera set out at paragraphs [116] to [117] of the TFASOC. The primary judge further erred at [134] of [PJ] in holding that separate penalties should be imposed upon the CFMMEU in respect of the contraventions set out at paragraphs [116] to [117] of the TFASOC.

Ground 3 (Declaration 17, Penalty Order 2) [affecting Taylor]

The primary judge erred in finding at [328] and [334] of [LJ] that Taylor was involved in the actions of Kera by which Kera send the text message “Eenie meenie miney mo!” to Mr O’Sullivan at about 3.44pm on 5 June 2014. The contraventions alleged were set out at paragraphs [120] to [121] of the TFASOC.

Ground 4 [affecting Darren Greenfield]

The primary judge erred in finding at [220] and [221] of [LJ] that Darren Greenfield gave directions to the workers at the Rhodes site. It was a breach of procedural fairness to make such a finding without alerting Darren Greenfield to the possibility of that finding being made. There were no contraventions alleged in the TFASOC. The finding should be quashed.

Ground 5 (Penalty Order 3) [affecting Kera]

The primary judge made findings as to the applicability of common law sentencing principles concerning contraventions that are part of a course of conduct (“course of conduct”) in the third last and fourth last sentences of [80] of [PJ].

The primary judge fell into error in rejecting the submission that the contraventions that took place on these two days were “based on the same interrelated factual elements being the attending and the blockading of the site”. The primary judge further erred in finding that it was not possible to consider the conduct on the two successive days as being but a single course of conduct.

The finding that there was no course of conduct was contrary to the facts that the conduct was constituted by a blockade of the same site in the same manner by the same official of the same union on consecutive days as part of a single campaign.

Ground 6 (Penalty Order 1) [replicating the error in Ground 5 and affecting the CFMMEU]

The primary judge erred in holding at [140] of [PJ] that separate penalties should be imposed upon the CFMMEU in respect of the separate contraventions set out in Ground 5.

Ground 7 (Penalty Order 6) [affecting Collier]

The primary judge erred in finding at [137] of [PJ] that Collier’s conduct giving rise to the contraventions of ss.343 and 494 on 11 March was conduct not subject to s.556. That conduct involved entering without an entry permit and disrupting work. It fell readily within both sections.

Ground 8 (Penalty Order 1) [replicating the error in Ground 7 and affecting the CFMMEU]

The primary judge erred in holding at [136] of [PJ] that separate penalties should be imposed upon the CFMMEU in respect of the separate contraventions set out in Ground 7.

This ground of Appeal affects the CFMMEU, insofar as its liability was based on Collier’s conduct.

[Ground 9 was deleted]

Ground 10 (Penalty Order 1) [affecting the CFMMEU]

The primary judge erred in his application of the principles of totality in respect of the penalties imposed on the CFMMEU for the contraventions imputed to it by the conduct of Taylor and Kera, in accordance with the Yarra’s Edge case [2016] FCA 772 at [19] and ABCC v Pauls at (2017) FCA 843 at [48] (see [135] of [PJ]).

[Ground 11 was deleted]

Ground 12 (Penalty Orders 2, 4, 5, 6 and 8) [affecting Taylor, Parker, Razaghi, Manna and Collier]

The primary judge erred in not reducing the penalties for Taylor at [74], Parker at [100], Razaghi at [90], Collier at [107] and Manna at [125] when they no longer worked for the [CFMMEU] and where the need for specific deterrence was necessarily reduced. The primary judge did not refer at all to the resignation of those respondents and the Full Court can infer that his Honour did not take that into account.

By contrast, the primary judge did reduce the penalty for Garvey on this basis at [117] of [PJ], and for this reason failed to apply principles of parity in respect of Taylor, Parker, Razaghi, Manna and Collier.

Ground 13 (Penalty Orders 1, 4, 6 and 8) [affecting the CFMMEU, Razaghi, Collier and Manna]

The primary judge erred in finding that the loss occasioned could not be underestimated and that no quantification of loss was possible beyond the costs of the boom pump and the cost of paying idle workers at [88] of [PJ], when the loss had been largely quantified and referred to by the primary judge.

Ground 14 (Orders 9, 10, Appendix A) [affecting the CFMMEU, Taylor, Kera, Razaghi, Parker, Collier, Garvey and Manna]

The primary judge erred in finding at [151] and [152] of [PJ] that s.545 of the [Fair Work Act 2009 (Cth) (the Fair Work Act)] gave a source of power to make a publication order. The only orders that can be made under s.545 are orders that are preventative, remedial and compensatory.

The primary judge’s conclusion at [152] of [PJ] that advertisements of the kind presently envisaged will hopefully go some way to “preventing” further like contraventions of the Fair Work Act incorrectly applied the concept of preventative orders. Such orders are orders that stop or prevent the continuation of the conduct the subject of the contraventions (see Construction, Forestry, Mining and Energy Union v Hadgkiss [2009] FCAFC 17 (26 February 2009), 174 FCR 237 at [104]).

The naming in the publication ordered of individual respondents who no longer worked for the [CFMMEU] fulfilled no preventative, remedial and compensatory purpose.

The purpose of informing construction workers of the kind of conduct which constitutes a contravention of the Fair Work Act was extraneous to the purpose of a preventative order. There was no jurisdiction to make such an order.

Ground 15 (Orders 9, 10, Appendix A) [affecting the CFMMEU, Taylor, Kera, Razaghi, Parker, Collier, Garvey and Manna]

The primary judge erred in the exercise of his discretion in making a publication order so long after the event. There was no utility in making the orders at such a late stage where any such orders would only serve as instruments of embarrassment in circumstances where the conduct was not continuing, where a number of the subjects of the publication were no longer working for the CFMMEU and where the publication did not rectify the contravention: see Construction, Forestry, Mining and Energy Union v Hadgkiss [2009] FCAFC 17 (26 February 2009), 174 FCR 237 at [104], [105], [159].

(Paragraph numbering omitted; errors in original; emphasis in original)

LIABILITY GROUNDS OF APPEAL

Grounds 1 and 2 – identification of the contract for services and prejudice

6    These two grounds raise the same issue in relation to the declarations and penalty orders made against Mr Taylor and Mr Kera (ground 1), and in relation to the consequential liability of the CFMMEU arising from their conduct (ground 2). The issue raised is the extent to which a finding of adverse action under s 340 of the Fair Work Act 2009 (Cth), by reason of a threat contrary to s 342(2) to engage in conduct proscribed in item 7(c) in s 342(1), required the primary judge both to identify the particular contract for services that was alleged to be in peril of being prejudiced and to identify that prejudice.

7    Both parties relied upon the Full Court decision in Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; (2018) 363 ALR 246 (Allsop CJ, Collier and Rangiah JJ). Auimatagi was a case in which, inter alia, at trial adverse action had been found to have taken place based upon actions taken, contrary to item 7(c) in s 342(1). The Full Court dealt with the issue of whether there was error in that conclusion at [102]-[118], upholding the ground of appeal (as well as the appeal generally on liability). The appellants rely upon the reasoning in Auimatagi at [109]-[111], while the Commissioner relies upon the reasoning at [114]. In order to better understand the competing arguments, it is convenient to reproduce all of [109]-[114] from Auimatagi:

109    Prejudice is a matter of fact. It is therefore necessary to be proved. In another context, the altering of “the position of an employee to the employee’s prejudice” in s 298K(1) of the [Workplace Relations Act 1996 (Cth)], Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; 153 ALR 643; 27 ACSR 535; [1998] HCA 30 at [4] described the provision as a “broad category” that covered “not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee.” Meanings given by dictionaries are equally broad: Macquarie (1985) — “disadvantage remitting from some judgment or action of another; resulting injury or detriment”; the Shorter Oxford Dictionary on historical principles (1973) — “injury, detriment or damage caused to a person by judgement or action in which his rights are disregarded”.

110    In the context of item 7(c) one can see that the prejudice is likely to be economic in some fashion, but it would be wrong to seek to generalise or narrow the expression beyond recognising that it is harm or disadvantage of a kind that may be suffered in a context of employment and business as an independent contractor who has entered into a contract for services. It is likely in most cases to be financial loss, but the generality of the word should not be necessarily so limited.

111    No one sought to put this into concrete form contextualised by reference to the relevant contract for services. The absence of the subcontractors’ workers from the site was said to be prejudice on its face.

112    In argument on the appeal, senior counsel for the respondent submitted that the relevant contract for services was or were the contracts with the subcontractors. (On another view, it might be John Holland’s head contract with the principal.)

113    In relation to those contracts for services John Holland has not received the labour of the subcontractors’ workers for these days. It is not easy to see how John Holland is disadvantaged in relation to those contracts by that fact. The evidence that there was a degree of agreement and authorisation of the conduct by the subcontractors themselves would make it very difficult to see how they could be paid for those days. If (contrary to the submission of senior counsel) the relevant contract was John Holland’s head contract, it might well be possible that the three day loss of work delayed work or interfered with some critical path, or resulted in some financial loss or other disadvantage to John Holland. But why, in particular in civil penalty proceedings, would one make that assumption when the party in whom the knowledge dwells does not lead any evidence about such straightforward matters with a full opportunity to do so?

114    We should not be taken to be placing some narrow construction on the word “prejudice”. Rather, it is a word of wide import. But it should be proved, unless the reality of it is manifest. Not to have the subcontractors’ workers working for three days may or may not have disadvantaged John Holland in some way financially or otherwise in relation to the contracts for services with the subcontractors or in relation to the head contract. One can imagine fairly easily how that might be the case and how it might be proved. One can also imagine, especially in circumstances when the subcontractors authorised the action, that there was no prejudice to John Holland in relation to those contracts; and one can imagine that, especially with its own workers working, there was no substantial disadvantage to John Holland in relation to the head contract. Evidence was called for.

8    The appellants assert that the primary judge made no finding that identified the particular contract for services or proved prejudice to BKH, and submit that without such findings his Honour was not entitled to find that the contravention of s 340 was established. The substratum of that argument that emerged at the appeal hearing is that the appellants contend that item 7(c) in s 342(1) does not work as a matter of ordinary language with a threat proscribed by s 342(2), which had the practical effect of precluding an effective pleading being possible.

9    The Commissioner approaches the issue in an entirely different way. He contends that Auimatagi is distinguishable on its facts because that case involved action actually taking place, whereas the present case involves a threat to take such action, as proscribed by s 342(2), relevantly in relation to item 7(c) in s 342(1). He submits that the Full Court nonetheless made it clear that, while “prejudice” must ordinarily be proven, that may not be necessary if the reality of it is “manifest”. The Commissioner contends that this way of looking at the situation in this case is even more apposite when the conduct concerned is a threat of action, rather than action itself. The Commissioner points out that:

(1)    the CFMMEU admitted by its defence that at all material times BKH had been engaged to perform building work which included the “Rhodes Project” and that it was an “independent contractor” for the purposes of s 342(1);

(2)    there is no challenge to the finding that on 5 June 2014, Mr Taylor said to a group of formwork subcontractors that “if you don’t sign the new EBA we will pick one of you and smash your jobs”: LJ [112];

(3)    it was not in dispute that one of the persons present at the meeting was Mr O’Sullivan, the General Manager of Wexdek Formwork Pty Ltd trading as BKH Contractors: LJ [6], [12] and [112]; and

(4)    there is no challenge to the finding that on the same day Mr Kera sent a text message to Mr O’Sullivan which read, “Eenie meenie miney mo!”: LJ [124].

10    In the context of the foregoing, the Commissioner submits that the pleading at [116] of the third further amended statement of claim (TFASOC), cross-referenced in the particulars to [17]-[19] and in the context of [118]-[119], went far enough in identifying the sites in question and the companies that had been engaged to perform work at those sites, including, relevantly, the Rhodes site contract and formwork independent subcontractor working there. Further, the Commissioner submits, item 7(c) in s 342(1) has to be read with the threat proscribed by s 342(2) so that proving a threat of conduct that, if carried out, would have the effect, directly or indirectly, of prejudicing an independent contractor in relation to contract for services, will suffice. Viewed in this way, the Commissioner submits that the primary judge went far enough because the contracts at risk of prejudice if the threats were carried out were sufficiently identified when his Honour described the factual background to the proceeding in his liability judgment (set out at [3] above).

11    Similarly, the Commissioner submits, the prejudice being threatened was manifest in the finding of the primary judge as to what was said by Mr Taylor at a meeting of independent formwork contractors, as noted above.

12    We consider that the Commissioner’s submissions should be accepted. The primary judge did not err as the appellants contend. Rather, his Honour sufficiently identified the contracts that were the subject of the threats that were found to have been made and the prejudice that was threatened. No more was required. These grounds of appeal must fail.

Ground 3 – adverse action finding against Mr Taylor

13    Ground 3 is conceded by the Commissioner, who accepts that the primary judge found the contravention by Mr Kera was made out by reference to agreement or joint enterprise reasoning in sending the “Eenie meenie miney mo!” text message, and that Mr Taylor was involved in that contravention. This went beyond the “knowingly concerned” case that was run by the Commissioner at trial against Mr Taylor. The case run in that way had to fail because his Honour was not willing to infer that the contents of Mr Taylor’s threats, when read with the content of Mr Kera’s text message, meant that the two men had to have had, in effect, a coordinating conversation. As the Commissioner conceded, the evidence fell short of establishing that Mr Taylor had knowledge that Mr Kera was going to send the text message. It follows that declaration 17 must be set aside and the corresponding penalty of $3,000 imposed for being involved in Mr Kera’s contravention be removed by reducing the penalty imposed upon Mr Taylor by $3,000 so that it is $8,000.

Ground 4 – findings made about Mr Greenfield

14    Ground 4 was not pressed, and the question of competence of an appeal by someone who had been, but no longer was, a party does not need to be determined. This course was adopted on the basis that it was agreed that the primary judge made findings against Mr Greenfield without him being given an opportunity to respond. It is sufficiently protective of Mr Greenfield’s interests that this Court finds that those adverse findings against him cannot endure or be relied upon elsewhere.

THE PENALTY AND RELATED GROUNDS OF APPEAL

15    As noted above, grounds 9 and 11 were abandoned.

16    Grounds 5 to 8 and 10 all deal with the manner in which the primary judge dealt with issues relating to course of conduct, totality and double jeopardy, relying upon the observation in Parker v Australian Building and Construction Commissioner [2019] FCAFC 56; (2019) 365 ALR 402 at [266] that each concept “requires, in different ways, a holistic view of what has taken place to ensure that the penalties imposed overall are proportionate to the conduct”.

Grounds 5 and 6 – course of conduct

17    These two grounds raise the same issue in relation to the declarations and penalty orders made against Mr Kera (ground 5), and in relation to the consequential liability of the CFMMEU arising from Mr Kera’s conduct (ground 6) in relation to his contraventions of s 343 (coercion) arising out of the blockade at the Wolli Creek site on 16 and 17 March 2015. The issue raised is whether the primary judge erred by rejecting the appellants’ submission that the common law concerning course of conduct should apply. The paragraph said to evidence that error is PJ [80] as follows:

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

(Emphasis in original)

18    The substance of the appellants’ complaint is an assertion that the primary judge misdirected himself in the last sentence above by rejecting the submission of a single course of conduct by reference to s 556, rather than by properly considering the common law argument advanced, by which separate charges may nonetheless be regarded as arising out of a single course of conduct. The appellants submit that, by this error in approach, the primary judge’s finding that there was no course of conduct was contrary to the fact that the conduct arose as part of a single industrial campaign by a blockade of the same site, in the same manner, by the same official, on consecutive days. The appellants assert that the primary judge was required to examine the substance of what occurred when considering the application of course of conduct principles, both in s 557 and at common law, citing Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62; (2014) 221 FCR 153 at [18]-[23]. Had that taken place, the appellants submit that his Honour would have found that the second day (17 March 2015) constituted a continuation of the first day (16 March 2015), with no intervening event separating the two days.

19    In support of the error alleged, and to assert that it was carried into the penalties imposed, the appellants also point to the tables at PJ [74] and [126], wherein the primary judge set out, inter alia, the penalties imposed for coercion arising out of the blockade at the Wolli Creek site on 16 and 17 March 2015, and submit that there is no apparent adjustment on the basis of commonality of the conduct. The penalty imposed on Mr Kera for those two days was $7,500 and $5,000 and upon the CFMMEU was $35,000 and $25,000.

20    The Commissioner responds by submitting that the reliance by the appellants on the mere fact that conduct occurred at the same site, by the same official on consecutive days is not sufficient to establish that the conduct arose from a “course of conduct”, citing the discussion on this topic in Parker at [267]-[286], and particularly the observation at [280] to the effect that the appellants must demonstrate error, not merely an alternative way of viewing what took place. The Commissioner relies on LJ [240]-[263], wherein the primary judge describes organising the first day on 15 March 2015, the blockade on 16 March 2015, the separate organising of the second day on 16 March 2015 and the blockade on 17 March 2015. The Commissioner submits that it was thereby open to his Honour to draw a distinction between the factual elements of Mr Kera’s conduct on the two separate days. The Commissioner points out that on the first day, the unchallenged finding is that Mr Kera, in addition to blockading the Wolli Creek Site, exercised a degree of control or supervision of the conduct of other persons who participated in the blockade. The planning of the second day then took place, and on the second day, Mr Kera’s conduct was limited to involvement in the blocking of the entrance to the site.

21    Thus, the Commissioner argues, it was open to the primary judge to conclude that there were qualitatively different elements to Mr Kera’s contravening conduct as between the two days, such that is was also open to his Honour to conclude that there was not a single course of conduct. In those circumstances, the Commissioner submits that the appellants do not establish error merely by formulating a different way in which Kera’s conduct could be characterised. If a different conclusion was sought to be reached, it was incumbent on the appellants, and Mr Kera in particular (who did not give evidence), to lead evidence to support a submission that the two contraventions occurred as part of a single “course of conduct”, citing Australasian Meat Industry Employees’ Union v Meneling Station Pty Ltd (1987) 16 IR 245 at the penultimate paragraph on p 257. In the absence of such evidence, the Commissioner submits that the primary judge did not err in concluding that the conduct on the two days was sufficiently separate and distinct not to regard it as a single course of conduct.

22    In reply, the appellants submit that they do not argue that the conduct on the two days was the same, but rather that there was such a significant interrelationship between the conduct on each of those two days, including the same object, so as to require that commonality be taken into account. Thus, the principles as to “course of conduct” had to be addressed. Importantly, they submit, the Commissioner does not point to any intervening factors here, for example the making of return to work orders, as happened in Parker at [280], or any exacerbation of the conduct. To the contrary, the appellants submit that the action on the second day was less serious, not more serious. Nor, they submit, is Meneling Station authority for the proposition that the alleged contravener has to adduce evidence to prove a single course of conduct. As that case recognised, it could, for example, emerge from the evidence led to prove the contraventions, or even from the pleadings (which in this case are identical for the two days but for the date and times). The appellants submit that diminution of unlawfulness does not make the second day sufficiently separate and distinct, where the legal and factual elements of the contraventions were otherwise clearly and closely interrelated. The appellants submit that the various factors relied upon compel the conclusion that his Honour erred in failing to conclude that there was a single course of conduct over the two days and adjust the penalties imposed accordingly.

23    We consider the Commissioner’s submissions on this topic should be accepted. First, the primary judge’s reasons at PJ [80] have to be read in the context of his Honour’s liability reasons concerning the same events. From those reasons the following may be gleaned. On 15 March 2015, the CFMMEU sent a text message requiring union delegates to attend a meeting at the Wolli Creek site on the first day, 16 March 2015. The blockade then took place on that day and was described in some detail by his Honour (at LJ [241]-[255]). A separate direction was given by the CFMMEU to delegates by text to attend again on the second day, 17 March 2015. That separate direction would not have been necessary had a continuing blockade been in contemplation prior to the blockade taking place on the first day. The blockade then took place on the second day, 17 March 2015, and was again described in some detail by his Honour (at LJ [258]-[263]).

24    That summary of the events by the primary judge gave his Honour a sound evaluative foundation for his penalty finding (as part of PJ [80]) that “[t]he participation in the blockade on those two days may have much in common, but the conduct remains separate and distinct and involves two contraventions”. The contravention pleadings do not constrain the subsequent penalty imposition conclusions. Rather, his Honour was entitled to form a view of the conduct as established by the evidence, including in particular by reference to the narrative and conclusions in the liability judgment. The appellants, and in particular Mr Kera, could have led evidence as to the way in which the conduct on the two days was planned and executed so as to link the two days as, in effect, manifestations of a single course of conduct, but chose not to do so. In those circumstances, the text messages were plainly part of the material considered by his Honour to support the conclusion that the action was taken on a separate and day-by-day basis, notwithstanding the common objective. His Honour’s conclusion should not be read down by the succeeding sentence to the effect that the conduct on those two days was not the same particular conduct for the purposes of s 556. Rather, his Honour should be understood to be saying that not only were there separate contraventions on the two separate days, but also that s 556 did not impose any barrier to imposing penalties for both days. Moreover, his Honour carefully differentiated between Mr Kera’s conduct on the two days by applying differential penalties both on him and on the CFMMEU. Once the course of conduct element fails, there is no independent basis for supporting the related complaint that the conclusion arrived at is infected by error.

25    These grounds must therefore fail.

Grounds 7 and 8 – the application of s 556

26    These two grounds concern the declarations and penalty orders made against Mr Collier (ground 7), and in relation to the consequential liability of the CFMMEU arising from Mr Collier’s conduct (ground 8) in relation to his contraventions of s 494 (entry without a permit) and s 343 (coercion) arising out of the disruption of a concrete pour at the Rhodes site on 11 March 2015, including using CFMMEU cars to block access to that site. On that day, some 30 concrete trucks were scheduled to deliver 220 cubic metres of concrete to build nine columns and the floor of a podium ([LJ [152]). The end result was that all, or at least a significant part, of the concrete that was able to be poured that day later had to be jackhammered out and repoured. In substance, no productive work was able to be carried out in relation to the concrete pour that day, which was an event that must have involved considerable time, including planning, scheduling and coordination given the scale involved, all of which would have to be repeated if the same was to be carried out on another day. The primary judge found that there were no genuine safety concerns to justify the conduct on that day. His Honour imposed on Mr Collier a penalty of $8,000 for the s 494 contravention and $8,000 for the s 343 contravention, and on the CFMMEU a penalty of $30,000 for the s 494 contravention and $30,000 for the s 343 contravention.

27    The appellants’ complaint, in substance, is that the s 494 contraventions were either wholly or substantially covered by the s 343 coercion contraventions, such that s 556 had to apply and dual penalties were not permissible. The appellants submit that the primary judge appeared not to have considered the application of s 556, a point that appears to have substance at first blush when close regard is had to the content of LJ [104]. The appellants rely upon the pleaded conduct to ground the s 494 contravention and to ground the s 343 contravention, characterising the pleading as follows:

(1)    the same conduct is pleaded to ground the s 494 contravention (TFASOC [100]-[101A]) and the s 343 contravention (TFASOC [133(c)] and [140]);

(2)    the pleaded conduct as to s 343 included entry to the site, a request to Mr Collier to produce his right of entry card, him refusing to leave and him raising safety concerns (TFASOC [57] and [60] as imported by [133(c)]);

(3)    s 556 was therefore engaged, as submitted to the primary judge.

28    In support of these grounds, the appellants also relied upon Australian Building and Construction Commissioner v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) (No 2) [2017] FCA 367. Specifically, the appellants submitted that The Australian Paper Case contemplates a crossover with respect to the conduct relied upon and such a “crossover” was, at the very least, also present in this case. The appellants, however, submitted that it went further in this case in that the conduct relied upon for the purposes of s 343 “subsumes” the conduct relied upon for the purposes of s 494.

29    In response, the Commissioner submitted that s 556 operates by reference to particular conduct and, accordingly, if a conclusion is reached that the particular conduct giving rise to the separate contraventions, though there might be an overlap between them, has some qualitative difference to it, then it was open to the primary judge to conclude that there were two contraventions each arising from discrete aspects of Mr Collier’s conduct. The Commissioner contended that this was the effect of the primary judge’s finding in PJ [102]–[103], where the primary judge described the conduct of Mr Collier that constituted the contraventions as including the following:

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

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

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

30    While the Commissioner accepted that there was some “crossover” in this conduct, he submitted that the primary judge was in the best position to make an assessment of that conduct, particularly having regard to the fact that his Honour heard all of the evidence during the course of the liability hearing. He submitted that no error is disclosed in the primary judge’s findings above in circumstances where the two contraventions arose from two discrete aspects of Mr Collier’s conduct, namely that:

(1)    the contravention of s 494 related to Mr Collier’s conduct in unlawfully entering the Rhodes site without the necessary entry permit;

whereas

(2)    the contravention of s 343 related to Mr Collier’s conduct in the unlawful parking of a vehicle across the driveway to Gate 3 preventing access of concrete trucks, as well as his initial refusal to move the vehicle.

As such, the Commissioner submitted that the conduct underpinning the two contraventions was distinct and did not constitute the same “particular conduct” as that term is used in s 556.

31    In reply, the appellants submit that the Commissioner’s submissions fail to grapple with the point raised by these grounds of appeal, namely that the contraventions are categorised by reference to the case as pleaded, in which the contraventions are not expressed in a way that is distinct. In support of this argument, the appellants point out that the primary judge at PJ [102] found that Mr Collier entered the site for the purpose of being as disruptive as possible to the activities then being undertaken and on that basis was found to have contravened s 494. That same disruptive conduct was then relied upon in finding the contravention of s 343. The appellants therefore submit that the primary judge gave no regard, or at least insufficient regard, to the identification of the relevant “particular conduct” that gave rise to each contravention, noting that his Honour was required to ensure that the contraveners were not penalised twice for the same conduct, citing by analogy Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40].

32    After judgment was reserved in this appeal, the parties drew our attention to the subsequent Full Court judgment in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201 (Hassett). That appeal concerns contraventions of ss 499 and 500 of the Fair Work Act. Its relevant factual background and the outcome before the primary judge were summarised by the Full Court as follows (at [6]-[9]):

6    … The respondent made allegations to the effect, and the appellants admitted, that on 5 June 2017, whilst in attendance at a construction site in Devonport, Tasmania:

(i)    Hassett climbed on a crane whilst it was in operation;

(ii)    Hassett refused a request of the occupier at the site to get off the crane (which request was reasonable because it was unsafe to be on the crane whilst it was being operated—that conduct is defined in the Amended Statement of Claim as the “5 June OHS Request”); and

(iii)    Hassett used insulting language and engaged in abusive behaviour.

7    By reason of the conduct in (i), the appellants were found to have contravened s 499 of the [Fair Work Act]. By reason of the conduct in (i), (ii) and (iii), the appellants were found to have contravened s 500 of the [Fair Work Act].

8    The appellants contended before the primary judge that because Hassett’s conduct that established the contravention of s 499 (refusing the reasonable request to get off the crane) was also an element of the contravention of s 500, s 556 applied and only one penalty could be imposed on each of the appellants in relation to that particular conduct.

9    The primary judge rejected that contention. At [48]-[50] of his Honour’s reasons for judgment, the primary judge referred to the reasoning of Tracey J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2018] FCA 1211 at [40]-[43], and in essence, concluded that the conduct constituting the contravention of ss 499 and 500 was not the same conduct for the purposes of s 556 because of the more expansive nature of the conduct constituting the contravention of s 500.

33    In concluding that the primary judge had erred, the Full Court addressed three issues as follows:

(1)    the meaning of the expression “particular conduct” in s 556 of the Fair Work Act (at [12]-[16]);

(2)    what is covered by the word “conduct” in s 556 (at [17]-[26]); and

(3)    whether the penalties applied were appropriate to the two contraventions concerned (at [27]-[31]).

34    The third issue above is not pertinent for present purposes. On the first issue, the Court noted (at [15]) that the primary judge:

… construed s 556 as though “particular conduct” meant the whole of the conduct the subject of a contravention and a consequent pecuniary penalty. It was because the whole of the conduct relevant to the s 500 contravention was larger or more expansive than the conduct the subject of the s 499 contravention (Hassett’s refusal to get off the crane), that his Honour concluded that s 556 was not engaged …

35    The Full Court considered his Honour had erred in this construction. It explained that error in the following terms (at [16]):

Hassett’s refusal to get off the crane was relevantly the “particular conduct” for s 556 purposes. That particular conduct was part of and was subsumed by, the whole of the conduct the subject of the contravention of s 500. Where that particular conduct was the subject of penalty in relation to a contravention of s 500, s 556 precluded that particular conduct being the subject of a penalty in relation to the contravention of s 499 of the [Fair Work Act].

36    The reasoning the Full Court partly relied upon to reach this conclusion focused on the word “particular” in the expression “particular conduct” and the expression “in relation to”, both of which appear in s 556. With respect to the latter, it observed (at [14]) that:

… The purpose of that phrase is to make it clear that the provision is addressing “particular conduct” that is the subject of the penalty imposed, and not necessarily all of or the whole of the conduct for which the penalty was imposed. Where that particular conduct is the subject of a pecuniary penalty, s 556 requires that that particular conduct not be the subject of a further pecuniary penalty.

37    On the second issue, the Full Court adopted the reasoning of Jessup J in The Australian Paper Case at [40] (Hassett at [18]-[19]) and rejected the respondent’s argument based on common law principles of double jeopardy that his Honour’s construction of s 556 was erroneous (at [20]-[25]). On this issue, the Full Court concluded (at [26]) that:

We respectfully adopt the construction of s 556 applied in The Australian Paper Case. Contrary to the submission advanced on behalf of the respondent and with respect to Jessup J, that construction is not plainly wrong, and in our view it is correct. It accords with the plain meaning of the words by which the section is expressed and also the underlying policy considerations to which we have referred. The “particular conduct” to which s 556 refers is the constituent act or omissions that a wrongdoer has committed – that is, what he or she (or it) actually did.

(Emphasis in original)

38    We do not accept that the same conduct was relevantly pleaded in support of both contraventions. To the contrary, the conduct pleaded in the paragraphs to which the appellants have referred is, in our view, materially different as between the two contraventions. Nor do we accept that the conduct constituting the contravention of s 494 was wholly subsumed in the conduct constituting the contravention of s 343. In our view, the primary judge was well aware that there were distinct and separate components of the conduct constituting each of those contraventions. So much is apparent from his Honour’s conclusion at PJ [104] that the contraventions on 11 and 12 March 2015 should attract separate penalties because of “the very different conduct pursued by Mr Collier, in particular on 11 March 2015” and because “[t]he conduct on those two days was not the same ‘particular conduct’ for the purposes of s 556” (emphasis in original). At PJ [102], the primary judge demonstrated why that was so by summarising, by reference to various paragraphs of the liability judgment (LJ [159], [187] and [285]), the components of Mr Collier’s conduct that constituted the contraventions of s 494 of the Fair Work Act, namely purporting to exercise a State or Territory occupational health and safety right on both sites on both days when he was not a permit holder under the Fair Work Act. His Honour then proceeded, at PJ [103], to contrast that conduct with the conduct constituting the contravention of s 343 by summarising, by reference to various separate paragraphs of the liability judgment (LJ [173], [179], [182], [234] and [289]), the very different conduct that constituted that contravention, namely engaging in coercive conduct at the Rhodes site on 11 March 2015 by parking a vehicle across Gate 3 at that site and thereby obstructing the entry of cement trucks to the site. The Commissioner is therefore correct in his contention that the conduct underpinning the two contraventions was distinct and did not constitute the same “particular conduct” as that term is used in s 556 of the Fair Work Act. In our view, nothing that the Full Court said in Hassett detracts from this conclusion. To the contrary, its treatment of the reasoning of Jessup J in The Australian Paper Case at [40] is entirely consistent with it.

39    For these reasons, grounds 7 and 8 must fail.

Ground 10 – totality

40    This ground asserts that the overall penalty of $237,000 imposed on the CFMMEU suffers from a defect in that the primary judge failed to conduct the totality assessment required at the final stage of his penalty imposition, so as to ensure that the total effect of the penalties imposed was not excessive. The point taken by the appellants, ultimately in reply as discussed below, is not that the primary judge failed to mention totality, but rather an assertion that his Honour failed to give effect to it. Particular issue is taken with his Honour’s treatment of the conduct of Messrs Taylor and Kera on 5 June 2014 (being the meeting with the formwork companies, with the threats made by Mr Taylor and the subsequent text message sent by Mr Kera) that led to contraventions of s 343 that were attributed to the CFMMEU pursuant to s 793 of the Fair Work Act. This, in turn, led to the imposition of penalties of $36,000 upon the CFMMEU for the conduct of each of those two individuals. The issue thus raised for determination was not whether s 556 was correctly applied, but rather whether, after the application of totality, it was appropriate to penalise the CFMMEU an aggregate $72,000 for the conduct of Messrs Taylor and Kera. The appellants contend that there needed to be overt or sufficiently implicit recognition of the commonality, combination or overlap in the attribution of conduct by reference to the actions of the individuals, citing Parker at [302].

41    The Commissioner submits that the primary judge, at PJ [143]-[145], both considered and applied the totality principle as it related to the overall penalty of $237,000 that was ultimately imposed on the CFMMEU. The Commissioner characterises the totality process engaged in by his Honour as “entirely orthodox and consistent with principle”, citing Parker at [292] and Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 at [117] (see also [81]-[82]).

42    In reply, the appellants reiterate that the complaint is not that the primary judge did not refer to totality, but rather they assert that that principle was applied only in form and not in substance. That is said to be so because the principle was not applied to the components of the penalty imposed on the CFMMEU by reason of the conduct of Messrs Kera and Taylor on 5 June 2014, ascribed to it, as reflected in the penalty table at PJ [126] and his Honour’s observations at PJ [135]. The appellants contend that his Honour was required to have regard to the common elements of that conduct, including the fact that s 793 of the Fair Work Act is not based upon vicarious liability, but rather on the attribution of conduct and state of mind to the CFMMEU, which may then ground findings of contravention by it as a primary contravener. The appellants therefore contend that his Honour was required, as part of the penalty imposition process and reasons (presumably separately and specifically), to assess any overlapping of the attributive conduct and determine whether to reduce the penalty accordingly, citing Parker at [303].

43    The points of principle raised by the appellants are well-made and not in dispute. Importantly, the primary judge (at PJ [38]-[50]) considered the authority and principles on the topic of “Overlapping conduct, ‘course of conduct’ & ‘totality’” (emphasis removed), leaving no room to doubt that his Honour fully appreciated the substance of what was required. His Honour also (at PJ [58]-[64]) separately described the methodology adopted.

44    The issue is whether the primary judge’s reasons sufficiently indicate that totality was in fact properly brought to account as his Honour expressly said it was. To answer that question due regard must be had, in at least general terms, to the full assessment process engaged in by his Honour, including the assessment carried out at the liability stage. In the liability judgment (at LJ [105]-[128]), the primary judge summarised in some detail the evidence as to what took place at the 5 June 2014 meeting involving, among others, Mr O’Sullivan, the General Manager of Wexdek Formwork Pty Ltd trading as BKH Contractors. That summary was interspersed with key statements of principle and addressed the issue concerning the witnesses who were not called. It also included a summary of the evidence concerning the sending of the “Eenie meenie miney mo!” text message by Mr Kera later that afternoon to Mr O’Sullivan. At LJ [322]-[338], his Honour made his contravention findings for both s 340 and s 343.

45    The liability judgment was expressly referred to in the penalty judgment (at PJ [3]) and must be taken to form part of the penalty assessment process. It is in that context, and in the context of the whole of the penalty judgment, that the various parts of that judgment relied upon by the parties – PJ [143]-[145] relied upon by the Commissioner and PJ [126] and [135] relied upon by the appellants – must be assessed.

46    The substance of the appellants’ complaint is ultimately a grave one. It amounts to a claim that his Honour, presumably it is said inadvertently, did not in fact conduct the exercise that was described (at PJ [143]) of taking the last step of considering whether the final penalty in contemplation required further adjustment. As was pointed out in Parker in response to a similar argument, albeit directed to penalties imposed on nine individuals and two unions (at [299]-[300]):

299    If this ground of appeal is to succeed, it will turn not so much on what was said and addressed, but on what was left unsaid or was otherwise not addressed. That is the thrust of what is left of this aspect of the appellant’s case. That is a difficult exercise, especially with the number of individuals involved and the cross-over and interaction of what each did. The primary judge’s articulation of the totality exercise was, quite understandably in all the circumstances, somewhat sparse. It described what had to be done, and it described the conclusion reached, but it did not articulate just how the process of stepping back and viewing the penalties as a whole had taken place. If it was otherwise apparent that this had in fact occurred, the point would go nowhere. As it transpires, it goes nowhere for the principal individual appellants, but finds fertile ground for the union appellants.

300    The primary judge was not obliged to apply the totality principle in a particular way, or indeed at all, provided that it was properly considered, which it was when due regard is had to his Honour’s extensive and careful consideration of the conduct of the individuals, especially in the liability judgment. The short summary of what took place in [56], reproduced at the end of [289(5)] above, in its proper context, leaves no room to conclude that inadequate attention was given to totality in relation to those individuals. This is especially so when regard is had to the differentiated penalties imposed as between each of them; and also the differential penalties imposed on the other five individual appellants. Further articulation was not required for this Court to be satisfied that the totality principles were not just stated, but also properly applied, in relation to Messrs Parker, Kera, Reeves and Collier. It follows that this ground of appeal must fail for those individuals.

47    The appellate assessment on a totality ground such as this does not, at least in this case, call for the dismantling or dissecting of the many threads in the primary judge’s liability and penalty judgments. What must be evident is that, viewed globally, and with only such descent into detail as is reasonably necessary, whether there is any sufficient reason not to take his Honour at his word. In Parker that was possible, but only in respect of the two Unions, because the actual penalties imposed exposed a latent defect as to an aspect of totality that could not have been taken into account, despite a clearly conscientious endeavour to do so. Nothing so stark has been pointed to in this case.

48    Apart from the global description given by the primary judge at PJ [143], the approach that his Honour took to the quantification of the penalty to be imposed on each of Mr Taylor (at PJ [65]-[74]); and Mr Kera (at PJ [75]-[82]); and then on the CFMMEU by reason of the 5 June 2014 conduct of Messrs Taylor and Kera attributed to it (at PJ [132]-[134]); reveals a careful consideration of the detail of their contravening conduct and all of the related circumstances. In the course of that analysis, his Honour also considered, among other things, the history of the CFMMEU’s contravening conduct in prior cases (PJ [126]-[129]) and its size (PJ [130]-[131]). His Honour later reiterated the former (at PJ [144]) where he “expressly noted” that, in assessing the penalties, he was mindful of the CFMMEU’s history of non-compliance and its approach of treating penalties as but a “cost of doing business” (emphasis removed). With such care being taken at each step in assessing the factors affecting the penalty to be imposed on the CFMMEU, we consider that the final act (PJ [143]) of stepping back and considering whether totality required any lessening of the penalty thus arrived at did not have to involve the detailed exercise of dissection that the appellants contend was necessary. That is so because that exercise had already been included in the step-by-step process mentioned above. His Honour’s final check did not therefore need to be elaborate. In such circumstances, there is no reason to doubt his Honour’s word at PJ [143] that he duly gave effect to totality in his assessment of the CFMMEU’s penalty. This ground must therefore fail.

Ground 12 – parity

49    The substance of this ground is that the primary judge reduced the penalty imposed upon Mr Garvey because of a reduced need for specific deterrence arising from him no longer being employed by the CFMMEU, but that he did not do so for other individuals for which the same change of circumstances applied, namely Messrs Taylor, Parker, Razaghi, Collier and Manna who no longer worked for the CFMMEU. While this ground invites consideration of the question of the extent to which the criminal law principle of parity should be applied in the civil penalties context, in fact this is not a suitable vehicle for such an exercise to be carried out. That is so because the factors his Honour had regard to in assessing the penalty to be imposed on Mr Garvey went well beyond the mere fact that he was no longer being employed by the CFMMEU. To understand the point, it is not necessary to reproduce in full what the primary judge said about the penalty to be imposed on Mr Garvey (at PJ [109]-[118]). However, the following portions (at [113] and [116]-[118]) warrant reproduction:

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

•    his being only “briefly involved” as an official of the [CFMMEU];

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

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

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

•    his expression of “contrition and remorse”.

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

…

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

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

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

(Emphasis in original)

50    It can be seen from these excerpts that the primary judge’s reference to Mr Garvey no longer being involved with the CFMMEU was not merely confined to his resignation, but he also referred to his more limited involvement in the contravention and his intention never to be so employed again or to hold a right of entry permit again. Thus, Mr Garvey was not going to put himself in a position in which he would have the opportunity to breach s 500 again. Hence, the lack of a need for specific deterrence did not only rely on the cessation of his employment, but it also had regard to the likelihood of his ever being able to repeat the contravention in question. Even if parity principles did apply, there would be no proper basis for Messrs Taylor, Parker, Razaghi, Collier or Manna to feel any justifiable sense of grievance because, in these respects, none of them was in a comparable position to Mr Garvey. His Honour was not required to cherry-pick this detail of Mr Garvey’s circumstances and apply them to the other former employees of the CFMMEU who did not have the surrounding circumstances that he did. This ground must fail.

Ground 13 – loss and cost

51    This ground in substance asserts that, because certain costs could be measured, and because there was no specific evidence of losses beyond that, the primary judge erred in describing the overall loss as being something that cannot be underestimated, for the limited purpose of assessing the seriousness of the s 500 contravention by Mr Razaghi. This ground is misconceived. Just because costs can be proven by reproducing invoices that were rendered, such as for jack-hammering the spoilt concrete, that does not mean other losses must similarly be quantified before that feature can be taken into account. As can be seen from the following passages from the penalty judgment, the primary judge addressed this point and then used it in his assessment of the penalty to be imposed on Mr Razaghi (at PJ [88]-[89]):

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

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

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

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

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

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

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

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

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

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

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

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

(Errors in original)

52    Once it is appreciated that the quantified costs incurred were but a component of the overall losses, many of which are incapable of precise measurement, the notion that whatever is not quantified does not exist must be rejected. Viewed in that way, there is no error in the approach taken by the primary judge. This ground must therefore fail.

Grounds 14 and 15

53    The Commissioner concedes ground 15, which was an alternative to ground 14. The Commissioner accepts that the primary judge erred in relation to the publication orders. In his written submissions, he stated that he made that concession:

… on the basis of the Full Court’s decision in Parker ... at [366]-[381]. As the Full Court noted in Parker at [371], s 23 of the Federal Court Act [1976 (Cth)] provides sufficient source of power for the making of publication orders, but [it is accepted] that there would be limited utility in the re-exercise of that power at this stage on the materials available to the Court in line with Parker at [378]-[379].

(Errors in original)

54    It follows that the publication orders, being orders 9 and 10, must be set aside.

Conclusion

55    To sum up, for these reasons, we consider grounds 1, 2, 5, 6, 7, 8, 10, 12 and 13 do not demonstrate any errors in the two primary judgments. Since grounds 3, 14 and 15 are conceded, orders will be made setting aside declarations 12 and 16 made on 15 March 2018 and orders 9 and 10 made on 13 November 2018, respectively. Finally, for completeness, it is to be noted that, subject to the observations at [14] above, ground 4 was not pressed and grounds 9 and 11 were abandoned. There will be orders accordingly.

Associate:

Dated:    14 February 2019

SCHEDULE OF PARTIES