Federal Court of Australia

Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The 250 East Terrace Case) [2023] FCAFC 161

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the respondent’s costs of the appeal in an amount or amounts to be agreed or assessed in accordance with the Court’s costs practice note (GPN-Costs).

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

REASONS FOR JUDGMENT

THE COURT:

1    Over the morning of 16 October 2019, an obstructive picket line formed at a construction site located at 250 East Terrace, Adelaide (the “Site”). It had been organised by the second appellant, Mr Sutherland, who was then (and may still now be) a union official employed by the first appellant, the Construction, Forestry, Maritime, Mining and Energy Union (the “CFMMEU”). The apparent target of the picket line (hereafter, the “Picket”) was a developer who was said to owe money to the fourth appellant, Core-Form Pty Ltd (hereafter, “Core-Form”), which had been engaged to perform concreting works at the Site. Core-Form’s director, the third appellant (Mr Sneath), participated in the Picket, as did various other individuals.

2    The Picket was the subject of proceedings brought in this court under what was formerly the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (the “BCIIP Act”). By that action, it was alleged that the appellants had, through their involvement with the Picket, contravened s 47(1) of the BCIIP Act and, in consequence of having done so, were each liable to the imposition of a pecuniary penalty. By a judgment dated 1 July 2022—and principally on the strength of admissions—the court granted declaratory relief and imposed upon each of the appellants significant pecuniary penalties: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The 250 East Terrace Case) [2022] FCA 760 (O’Sullivan J; hereafter, the “Primary Judgment”).

3    By an amended notice of appeal dated 22 December 2022, the appellants appeal from the pecuniary penalty orders that were made against them. For the reasons that follow, none of the grounds of appeal upon which the appellants move is made good. The appeal should be dismissed and the appellants should pay the respondent’s costs.

Background

4    The relevant background is recited without controversy in the Primary Judgment (at [6]-[27]):

The respondents

6    The Union is and was at all relevant times an organisation of employees registered under s 26 of the Fair Work (Registered Organisations) Act 2016 (Cth) and by operation of s 27 of that Act, a body corporate such that it was capable of being sued in its registered name. It is and was an “industrial association” allowing membership by “building employees”, a “building association”, a “building industry participant”, and a “constitutionally-covered entity” all within the meaning of s 5 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (BCIIP Act).

7    In relation to the matters the subject of these proceedings, Mr Sutherland was acting in his capacity and within the scope of his authority, as the Acting State Secretary of the South Australian Divisional Branch of the Construction and General Division of the Union. He was an “officer” of the Union within the meaning of ss 5 and 95 of the BCIIP Act, an “official” of the Union for the purposes of s 94 of the BCIIP Act, and a “building industry participant” within the meaning of s 5 of the BCIIP Act.

8    Mr Sneath was at all relevant times a Director of Core-Form. He was also employed as a Manager of Core-Form. He was a “building industry participant”, and employed to perform “building work” both within the meaning of s 5 of the BCIIP Act. He was an “official” of Core-Form for the purposes of s 94 of the BCIIP Act. In relation to the matters the subject of these proceedings, Mr Sneath was acting in his capacity, and within the scope of his authority, as an employee of Core-Form.

9    Core-Form was at all relevant times a body corporate, in the business of performing formwork construction works (amongst other things). It was engaged to perform concreting works at 250 East Terrace, Adelaide (Site) and was both a “building industry participant” and a “constitutionally-covered entity” within the meaning of s 5 of the BCIIP Act.

The head contractor, the developers, and the subcontractor

10    Mr Sommariva was the head contractor for a construction project (Project) involving the construction of 14 apartments to the value of $27 million at the Site. Mr Sommariva was the occupier of the Site and a “building industry participant” within the meaning of s 5 of the BCIIP Act.

11    The developers of the Project were Pajo Projects Pty Ltd (Pajo) and 250 East Pty Ltd, each of which is a “constitutionally-covered entity” and a “building industry participant” within the meaning of s 5 of the BCIIP Act.

12    Scope Painting Pty Ltd (Scope) was contracted by Mr Sommariva to perform painting services at the Site. It was a “building industry participant” and a “constitutionally-covered entity” both within the meaning of s 5 of the BCIIP Act.

Background and the contravening conduct

13    On 22 November 2017, Mr Sommariva entered into a contract with Core-Form to supply and construct formwork at the Site.

14    In or about August 2018, a dispute arose between Core-Form and Mr Sommariva in which Core-Form alleged it was due approximately $180,000 for work done on the Site. Mr Sommariva alleged the works were incomplete and therefore payment was not due. As a result of not being paid, Core-Form had been forced to lay off workers.

15    In August 2018, Core-Form’s workers stopped attending the Site. On 20 September 2018, Mr Sommariva gave written notice to Core-Form terminating its contract with Core-Form.

16    Under a covering letter dated 30 April 2019, Mr Rudi Totzenberger, a Director of Core-Form, sent Mr Sommariva an invoice which was a summary of outstanding invoices for work done on the Site by Core-Form for Mr Sommariva (Core-Form claim).

17    The covering letter contained a statement that the invoice accompanying the letter was “… a Payment Claim made under the Building and Construction Industry Security of Payment Act 2009 (SA)”.

18    By letter dated 9 May 2019, Mr Sommariva rejected the Core-Form claim and denied it was a proper payment claim within the meaning of the Building and Construction Industry Security of Payment Act 2009 (SA) (SOP Act).

19    On 1 October 2019, Mr Sneath and a Union official (not Mr Sutherland) attended at the front entrance to the Site (the 1 October 2019 meeting) during which a conversation in the following terms occurred:

Mr Sneath said words to the effect of, “where is my tools and container?”

The Union official said words to the effect of, “where is Andrew’s [Mr Sneath’s] tools and the container, and you owe him money.”

Mr Sommariva said words to the effect, “this has got nothing to do with you … it’s none of your business.”

Mr Sneath said words to the effect of, “you owe us money.”

20    On 16 October 2019, at approximately 9.50am, some 20 to 30 people (protesters) gathered at the entrance to the Site on East Terrace, in front of the entry gates (Protest). The protesters included:

(a)     Mr Sutherland, who was wearing Union branded clothing and was in possession of a red Union flag;

(b)     Other persons wearing Union branded clothing, some of whom were holding Union flags with others holding signs with the words “PAY UR BILLS”;

(c)     Mr Sneath, who held the sign “JOB DONE WHERE’S THE MONEY”; and

(d)     Four persons who were employees of Core-Form.

21    During the Protest:

(a)     Some of the protesters held signs with the following phrases:

“PAY UR BILLS”;

“MR SOMMARIVA RIPS OFF WORKERS”;

“STOP RIPPING OFF SUBBIES”; and “JOB DONE WHERE'S THE MONEY”.

(b)     Some of the protesters used a megaphone to lead other protesters in various chants including:

“Pay your bills. Pay your bills! Pay your bills! Pay your bills, Joe!”;

“Sell your Porsche”; “Sell the car”;

“What do we want? Bills paid! When do we want it? Now!”

(c)     Some of the protesters also shouted “grub” and “grubby-grub-grub.”

22    Ms Talia Sommariva was employed by Mr Sommariva as a Trades Assistant to work at the Site. Some of the protesters said to her, “where’s your boots?”; “where’s your hard hat?”, “get off site”; and “where are your safety boots”; over about a five second period as well as chanting “pay your bills”; “joe’s a grub, grubby, grub, grub” over about a 15 second period.

23    Ms Lori Kambitsis was a legal practitioner whose firm was engaged to act on behalf of Mr Sommariva. Some of the protesters chanted in respect of her “sell the Porsche” and “pay your bills”.

24    Some of the protesters were directing the chants set out in paragraph 22 above at Mr Sommariva.

25    Mr Travis Adams (Mr Adams) was a painter with Scope. During the Protest, some of the protesters prevented a vehicle driven by Mr Adams from entering the Site by obstructing access to it. Mr Adams parked his vehicle and walked to the Site. As a consequence, he was prevented for approximately 19 minutes from using his vehicle to bring painting supplies onto the Site for the purpose of Scope performing its contract with Mr Sommariva.

26    The Protest disbanded at approximately 10.52am.

27    By reason of Mr Adams being prevented from driving his vehicle onto the Site, for a period of 19 minutes, the Protest was an unlawful picket insofar as it was action that:

(1)     Directly restricted Mr Adams from accessing the Site, in the sense that he was unable to park his vehicle on the Site;

(2)     Was motivated for the purpose of:

(a)     Supporting or advocating claims against Mr Sommariva by Core-Form in relation to the employment of employees or the engagement of it as a contractor in that:

(i)     The claims by the respondents were that if Mr Sommariva paid money allegedly owed to Core-Form it would allow Core-Form to pay its employees, stop it from laying off its employees, and cause it to reemploy its former employees; and

(ii)     Core-Form should be paid the money it was allegedly owed for work it had done for Mr Sommariva on the Site: (s 47(2)(b)(i) of the BCIIP Act); and

(b)     Advancing the industrial objectives of the Union which were:

(i)     To ensure that money be paid by Mr Sommariva to Core-Form so it could retain its employees, not have to lay off more of its employees, and re-employ former employees that had been laid off;

(ii)     To ensure greater employment security for the employees of Core-Form; and

(iii)     By reason of the matters at (b)(i) and (b)(ii) above, assisting members or persons eligible to be members of the Union: (s 47(2)(b)(ii) of the BCIIP Act).

The statutory framework

5    Before setting out the conclusions that the primary judge drew, it is convenient to chart the statutory provisions that served as the foundations for them.

6    Prior to its repeal in 2022, s 47 of the BCIIP Act provided as follows:

47 Unlawful picketing prohibited

(1)     A person must not organise or engage in an unlawful picket.

Note: Grade A civil penalty.

(2)     An unlawful picket is action:

(a)     that:

(i)     has the purpose of preventing or restricting a person from accessing or leaving a building site or an ancillary site; or

(ii)     directly prevents or restricts a person accessing or leaving a building site or an ancillary site; or

(iii)     would reasonably be expected to intimidate a person accessing or leaving a building site or an ancillary site;

and

(b)     that:

(i)     is motivated for the purpose of supporting or advancing claims against a building industry participant in respect of the employment of employees or the engagement of contractors by the building industry participant; or

(ii)     is motivated for the purpose of advancing industrial objectives of a building association; or

(iii)     is unlawful (apart from this section).

Note: See also Division 2 of Part 2 of Chapter 6 (reason for action and coercion).

7    As the note beneath it records, s 47(1) of the BCIIP Act was a “Grade A civil penalty” and, as such, qualified as a “civil remedy provision” for the purposes of that enactment: BCIIP Act, s 5. Section 81 of the BCIIP Act was concerned with orders that might be made in relation to conduct engaged in in contravention of civil remedy provisions. It provided as follows:

81 Penalty etc. for contravention of civil remedy provision

(1)    A relevant court, on application by an authorised applicant, may make one or more of the following orders relating to a person (the defendant) who has contravened a civil remedy provision:

(a)    an order imposing a pecuniary penalty on the defendant;

…

Maximum penalty for civil remedy provisions

(2)     The maximum pecuniary penalty is:

(a)     for a Grade A civil remedy provision—1,000 penalty units if the defendant is a body corporate and otherwise 200 penalty units;

…

Pecuniary penalties

(5)     A pecuniary penalty under paragraph (1)(a) is payable to the Commonwealth, or to some other person if the court so directs. It may be recovered as a debt.

(6)     In determining a pecuniary penalty under paragraph (1)(a), the court must take into account all relevant matters, including:

(a)     the nature and extent of the contravention; and

(b)     the nature and extent of any loss or damage suffered because of the contravention; and

(c)     the circumstances in which the contravention took place; and

(d)     whether the person has previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct.

…

8    As at 16 October 2019, a “penalty unit” was $210.00: Crimes Amendment (Penalty Unit) Act 2017 (Cth), Sch 1.

9    Section 94 of the BCIIP Act concerned (amongst other things) the attribution to bodies corporate of conduct engaged in by their officers, employees or agents. It provided as follows:

94 Liability of bodies corporate

Conduct of a body corporate

(1)     Any conduct engaged in on behalf of a body corporate:

(a)     by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

(b)     by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;

is taken, for the purposes of this Act, to have been engaged in also by the body.

…

10    By s 95, the BCIIP Act made separate provision for the attribution of (amongst other things) conduct to “building association[s]”:

95 Actions of building associations

(1)     For the purposes of this Act, each of the following is taken to be action of a building association:

…

(b)     action taken by an officer or agent of the building association acting in that capacity;

(c)     action taken by a member, or group of members, of the building association if the action is authorised by:

(i)     the rules of the association; or

(ii)     the committee of management of the association; or

(iii)     an officer or agent of the association acting in that capacity;

…

11    For present purposes, it is not controversial that the CFMMEU was a “building association” (within the meaning attributed to that phrase by s 5 of the BCIIP Act).

The primary judgment

12    Each of the appellants admitted their involvement in the Picket. In the case of Mr Sutherland (and, by attribution, the CFMMEU), that involvement assumed the form of his (and its) having organised it. In the case of Mr Sneath (and, by attribution, Core-Form), it took the form of his (and its) having engaged in it.

13    After setting out some matters of principle relevant to the setting of appropriate penalties under s 81(1)(a) of the BCIIP Act, the primary judge went on to record the submissions of the parties regarding the criteria that were said to be relevant to that endeavour. In the course of doing so, his Honour was moved to make some observations concerning the operation of the Building and Construction Industry Security of Payment Act 2009 (SA) (the “SOP Act”). Specifically, his Honour observed (Primary Judgment, [97] and following):

97    …the First and Second Respondents admit:

(1)    A dispute arose between Core-Form and [the developer and principal at the Site] Mr Sommariva in relation to payment for work done on the Site by Core-Form…;

(2)    Mr Sneath and a Union official attended the front entrance of the Site on 1 October 2019 and met with Mr Sommariva during which, amongst other things, a Union official said to Mr Sommariva words to the effect, “where is Andrew’s [Mr Sneath’s] tools and the container, and you owe him money”. Mr Sneath said words to the effect of, “you owe us money”…;

(3)    During the [Picket] Protest, persons wearing Union branded clothing held signs saying, “PAY UR BILLS”…;

(4)    Mr Sneath held a sign saying, “JOB DONE WHERE’S THE MONEY”…;

(5)    During the Protest some of the protesters held signs displaying the following phrases:…

(a)    “PAY UR BILLS”;

(b)    “SOMMARIVA RIPS OFF WORKERS”;

(c)    “STOP RIPPING OFF SUBBIES”; and

(d)    “JOB DONE WHERE’S THE MONEY”;

(6)    Some of the protesters used a megaphone to lead the protesters in various chants calling on Mr Sommariva to pay his bills…; and

(7)    The claims supported or advocated by the first and second respondents also involved a claim that Core-Form should be paid the money it was allegedly owed for the work done for Mr Sommariva on the Site...

…

99    The first and second respondents submit further in relation to this first reason, that there are no facts before the Court that show what the first and second respondents knew about the process of making a claim by Core-Form and what Mr Sommariva did in response to that claim. They submit that no logical inference arises that the first and second respondents knew anything about these matters or formed any view about them at the time.

100    I do not accept that submission. The Union and Mr Sutherland admit that they organised the unlawful picket. The content of what occurred during that Protest and during the unlawful picket makes it clear that the Union and Mr Sutherland chose to involve themselves in what was, to their knowledge, a commercial dispute between Core-Form and Mr Sommariva. The ignorance of both the Union and Mr Sutherland (if that be the case) of the procedure under the SOP Act is not to the point.

101    The second reason advanced by the first and second respondents is that there is a difficulty in being satisfied that Core-Form had a course available to it under the SOP Act and should have pursued it. They submit that it is not open for the Commissioner to choose selectively from the Sommariva affidavit as against Mr Sneath and Core-Form, isolated from responsive information in the same affidavit. I do not accept the second reason advanced by the Union and Mr Sutherland. I have granted leave to the Commissioner, Mr Sneath and Core-Form to read and rely upon those parts of the Sommariva affidavit as they wish.

102    Associated with the second reason that the Sommariva affidavit should not be received or considered, is the submission by the Union and Mr Sutherland that if any further material is to be admissible, the proper course was to take a further affidavit dealing with discrete issues that it proposes to address. I do not accept that submission either. The Court regularly considers discrete parts of documents as required, giving no weight to those matters not read or relied upon or otherwise the subject of a successful objection.

103    The third reason advanced is that the making of a claim under the SOP Act does not bear logically on the objective seriousness of the conduct of the Union and Mr Sutherland. The Union and Mr Sutherland submit that the pursuit of such a course under the SOP Act was never a course available to them such as to make their conduct more serious. Whereas I accept that neither the Union or Mr Sutherland were able to pursue a course under the SOP Act, nonetheless I do not accept that the availability of such a claim under that Act does not bear logically on the objective seriousness of their conduct. Neither the Union nor Mr Sutherland have submitted that they were unaware of the provisions of the SOP Act.

104    However, notwithstanding the Union through Mr Sutherland chose to interfere in a commercial dispute between Core-Form and Mr Sommariva, and in so doing engaged in the contravening conduct, I accept that at the time it did so, other than the claimed Payment Claim in annexure JS-3 to the Sommariva affidavit, Core-Form had not pursued its rights under legislation, notwithstanding the SOP Act’s object of protecting the cash flow of contractors and suppliers.

105    Accordingly, I accept that the existence of the SOP Act procedure is not, in this case, a matter going to the objective seriousness of the contravening conduct of the Union and Mr Sutherland.

…

110    Mr Sneath and Core-Form submit further that the Court does not know why Core-Form did not pursue its legal rights under the SOP Act or what the outcome would have been.

111    With respect, that submission misses the point which is that there existed at the relevant time, and still exists, legislation which has as its object to ensure that a person who undertakes to carry out construction work (or who undertakes to supply related goods and services under a construction contract) is entitled to receive, and is able to recover, progress payments in relation to the carrying out of that work and the supplying of those goods and services.

14    After reciting the parties’ submissions, his Honour was concerned in the usual way to address them. He did so by way of analysis of various matters that were relevant to the setting of penalties for each of the agreed contraventions of s 47(1) of the BCIIP Act. His analysis was split as between the CFMMEU and Mr Sutherland (on the one hand) and Core-Form and Mr Sneath (on the other). The first matter of significance concerned “[t]he objective seriousness of the contravening conduct” committed by the CFMMEU and Mr Sutherland. En route to concluding that that conduct was “objectively serious”, his Honour observed as follows (Primary Judgment, [116]-[118]):

116    The Union and Mr Sutherland submit that an inference that the contravening conduct was premeditated is not open. I do not accept that submission.

117    The contravening conduct occurred in the context of a protest consequent upon a commercial dispute between Core-Form and Mr Sommariva. Mr Sutherland was present at the Protest and he admitted to organising the unlawful picket. I consider it would have been very easy to ensure that those wearing Union insignia, or holding signs or placards identifying the holder with the Union, did not engage in an unlawful picket. It seems to me that an instruction from Mr Sutherland to those taking part in the Protest, prior to the Protest, not to engage in the contravening conduct was both necessary and prudent.

118    Under those circumstances, I infer that the unlawful picket was pre-meditated, in the sense that it was planned prior to the Protest.

15    His Honour then considered the “[c]o-operation and contrition” that the CFMMEU and Mr Sutherland had, by their admissions, demonstrated; and the significance of it to the setting of appropriate penalties. His Honour “…g[a]ve credit for the co-operation demonstrated by both the [CFMMEU] and Mr Sutherland”: Primary Judgment, [125].

16    The primary judge then turned to consider the CFMMEU’s and Mr Sutherland’s history of prior contraventions. On that score, it was observed (Primary Judgment, [129]-[130]):

129    This offending is both another example and a continuation of the Union’s appalling behaviour (whether in this form or in its pre-2018 amalgamation with The Maritime Union of Australia). I consider the Union’s record of prior contraventions is a matter going to both the objective seriousness of its contravening conduct and is a factor indicating an ongoing need for specific deterrence.

130    This is the fifth time Mr Sutherland has engaged in behaviour which contravenes industrial legislation. I consider Mr Sutherland’s record of prior contraventions is a matter going to both the objective seriousness of his contravening conduct and is a factor indicating an ongoing need for specific deterrence.

17    After considering other factors relevant to the exercise of his discretion, the primary judge resolved to impose against the CFMMEU and Mr Sutherland pecuniary penalties of $189,000.00 and $38,000.00 respectively—or approximately 90% of the maximum penalty available under s 81(1) of the BCIIP Act.

18    His Honour then proceeded to consider the nature and seriousness of Core-Form’s and Mr Sneath’s engagement in the Picket. As with the CFMMEU’s and Mr Sutherland’s organisation of it, his Honour was moved to conclude that Core-Form’s and Mr Sneath’s conduct was “objectively serious”: Primary Judgment, [146]. At least partly was that so in light of his Honour’s earlier reflections upon the operation of the SOP Act. The primary judge observed:

142    That the existence of the SOP Act was known to Core-Form is evident from the statement in annexure JS-3 to the Sommariva affidavit.

143    Core-Form responded to the Commissioner reading and relying upon paragraphs 5, 10 and annexure JS-3 to the Sommariva affidavit by referring to paragraph 11 and annexure JS-4 to that affidavit. That paragraph and that annexure demonstrate that Mr Sommariva considered that Core-Form’s payment claim was not a proper claim under the SOP Act. Whether or not that is correct, it does not justify, or in any way ameliorate, a contravention of s 47 of the BCIIP Act.

144    The failure by Core-Form to pursue the recovery under the SOP Act, whether because it chose not to or for other reasons, does not mean that the existence of the legislative scheme provided by the SOP Act is a matter that is irrelevant in the context of the contravening conduct in this matter.

145    The SOP Act gave Core-Form the opportunity to obtain an adjudicator’s decision on its payment claims. Mr Sneath is a Director of Core-Form. The failure by Core-Form to pursue its rights under the SOP Act, but instead engage in the contravening conduct, is a matter I take into account as going to the objective seriousness of the contravening conduct of both Core-Form and Mr Sneath.

…

147    Given the object of the SOP Act, the failure by Core-Form and Mr Sneath to utilise the SOP Act procedure and instead resort to engaging in an unlawful picket is demonstrative of a need for both specific and general deterrence.

19    After considering other circumstances relevant to the endeavour, his Honour settled upon penalties to be imposed upon Core-Form and Mr Sneath in the sums of (respectively) $132,000.00 and $25,000.00—or approximately 60% of the maximum available under s 81 of the BCIIP Act.

The appeal

20    The appellants contend that the pecuniary penalty orders that the primary judge made were made in error; and that, on appeal, the court should re-exercise the discretion to impose penalties at substantially lower levels. Eight grounds of appeal are pressed:

Ground One

1.    The learned primary judge erred at [104] and [145] in making a factual finding concerning the availability to the fourth appellant of the Building and Construction Industry Security of Payment Act (SA) 2009 (‘the SOP Act”) when such factual finding was unsupported by the admitted facts before the Court.

Ground Two

2.    The learned primary judge erred at [103], [110], [111] and [140] in giving undue weight to the potential applicability of the SOP Act, as a factor of the objective seriousness of the conduct of the third and fourth appellants, in circumstances where the admitted facts only indicated that this was potentially part of the factual and legal matrix of the relevant conduct.

Ground Three

3.    The learned primary judge failed to correctly apply to the third and fourth appellants the principles concerning the imposition of penalties articulated by the High Court in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 and in doing so the learned primary judge failed to strike a reasonable balance between deterrence and oppressive severity given the factual and legal matrix.

Ground Four

4.    The penalties imposed upon the third and fourth appellants were manifestly excessive such that the penalties imposed did not fall within the discretion conferred by section 546 of the Fair Work Act 2009 (Cth) and the learned primary judge erred at [146] in finding that the contravening conduct of the third and fourth appellant was objectively serious.

Ground 4A

4A.    The learned primary judge failed to distinguish between organising an unlawful picket and engaging in an unlawful picket in assessing the level of seriousness of the conduct engaged in by the third and fourth appellants, and failed to provide reasons for not distinguishing between the two types of conduct.

Ground Five

5.    The learned primary judge, in respect of the first and second appellants, failed at [114] to [118] to distinguish between the Protest and organising an unlawful picket and erred at [118], [128] in finding that the unlawful picket was pre-meditated when such an inference was not open; and further erred at [119] in finding that interruptions to work must always come at a cost, when such finding was not open on the evidence.

Ground Six

6.    The learned primary judge failed to correctly apply to the first and second appellants the principles articulated by the High Court in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 and erred in finding at [131] and [132] that the unlawful picket was “the perpetuation of a deliberate policy of disobedience” and the learned primary judge failed to strike a reasonable balance between deterrence and oppressive severity given the factual and legal matrix.

Ground Seven

7.    The penalty imposed upon the first and second appellant was manifestly excessive such that the penalties imposed did not fall within the discretion conferred by section 546 of the Fair Work Act 2009 (Cth) and the learned primary judge erred at [120] at [128] in finding that the contravening conduct of the first and second appellant was objectively serious.

Principles to be applied

21    When imposing civil penalties under s 81(1) of the BCIIP Act, it is appropriate to take into account the principles established by the High Court in Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ; hereafter, “Pattinson”). Those principles—summarised below—emerge from the civil penalty regime established by pt 4-1 of the Fair Work Act 2009 (Cth) but may be applied in the present context: Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The Botany Cranes Case) (2023) 409 ALR 656, 708 [206] (Bromberg, Moshinsky and Bromwich JJ).

22    In fashioning a civil penalty to be imposed for contravention of a statutory injunction such as s 47(1) of the BCIIP Act, the court is concerned solely to impose what is necessary in order to deter repetition of the conduct in respect of which its imposition is warranted: Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155 (hereafter, the “NIPP Case”), 167 [19] (Allsop CJ, White and O’Callaghan JJ), to which the High Court referred with apparent approval in Pattinson, 459-450 [16] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). Deterrence is both general and specific: a penalty must be set at a level sufficient to discourage contravening by both the wrongdoer against whom it is to be imposed and others who might otherwise be minded to engage in similar conduct.

23    What is necessary to deter the repetition of conduct that is engaged in in contravention of a statute is not an exact science. An assessment of what is appropriate may be informed by any number of considerations, although it is common for courts to advert specifically to those that were identified in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 (French J). Although some concepts familiar to criminal sentencing are apt to be applied when setting civil penalties, others ought not to be. Principles of totality, parity and course of conduct are in the former category. Notions of retribution and proportionality are not: Pattinson, 469-470 [44]-[45] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).

24    The imposition of penalties at or approaching the maximum of what is statutorily authorised is not a course reserved for the worst cases of contravention: Pattinson, 457 [10] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). Instead, penalties must be set at levels that are reasonably necessary to deter further contraventions of a like kind: Pattinson, 457 [9] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). That endeavour involves the striking of a balance between deterrence and oppressive severity: Pattinson, 468 [41] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).

25    With those general principles stated, attention may turn to the individual grounds of appeal and to the question of whether the Primary Judgment involved any misapplication of them. For reasons that will become apparent, it is appropriate to group the analysis of some of the individual grounds.

Grounds one and two: the application of the SOP Act

26    By grounds one and two, the appellants (perhaps, more accurately, Core-Form and Mr Sneath) charge the learned primary judge with having erred by assessing the nature or significance of their wrongdoing in part by reference to the availability of a process or processes under the SOP Act. It is said, first (by ground one) that his Honour erred in fact by concluding, on the evidence and admissions before him, that a remedy was available under the SOP Act in respect of the dispute that had arisen between Core-Form and Mr Sommariva (see above, [13]); and, second (by ground two), that his Honour, in assessing the objective seriousness of the conduct of Core-Form and Mr Sneath, gave undue weight to the potential availability of such a remedy or remedies.

27    Where, as here, unlawful conduct is engaged in in the context of a commercial dispute, the availability of alternative and lawful dispute resolution processes is permissibly amongst the considerations that might guide the setting of an appropriate civil penalty: Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232, [25] (Barker J). It is not difficult to understand why: a wrongdoer who, in attempting the resolution of a dispute, resorts to unlawful means in preference to others might more readily be thought to exhibit an attitude of indifference toward the law and, thereby, to require the imposition of a larger penalty as a means of ensuring against the possibility of repeated wrongdoing.

28    Ground one proceeds upon the premise that the primary judge, en route to assessing the nature and seriousness of Core-Form’s and Mr Sneath’s wrongdoing, concluded that the SOP Act supplied an alternative means by which their dispute with Mr Sommariva might have been resolved; and, more importantly, that it did so at the time of the Picket. That, it is said, was not so: any remedy that might have been available in connection with the dispute had, by the time of the Picket, expired.

29    As much may be accepted. It is unnecessary to traverse the relevant provisions of the SOP Act, nor to explain why, as at 16 October 2019, they did not present as an alternative means by which Core-Form might have approached the resolution of its dispute with Mr Sommariva. The flaw with what is put in agitation of ground one is that the primary judge made no finding to the contrary. His Honour did not proceed upon the basis that such rights existed specifically as at 16 October 2019. Rather, his Honour was concerned merely to note that they existed and were not availed of. Instead, Mr Sneath and Core-Form chose (later) to pursue the resolution of their dispute with Mr Sommariva by the unlawful means of the Picket.

30    There is no obvious controversy about the application of (and the potential conferral upon Core-Form of rights under) the SOP Act prior to 16 October 2019. The dispute that arose with Mr Sommariva quite plainly arose in connection with building works that Core-Form was engaged to perform at the Site. That they were the kind of works in respect of which the SOP Act was designed to operate is not materially in issue. At the very least, it was open to the primary judge to infer as much. The only issue presently is whether the primary judge proceeded upon the mistaken view that the Act operated so as to confer potential remedies as at 16 October 2019.

31    The primary judge’s analysis of the dispute demonstrates an awareness on his Honour’s part of some doubt as to whether or not the SOP Act had any potential application as at 16 October 2019 (see above, [18]). When his Honour’s reasons are read fairly and in context, it is plain that he proceeded on the basis that the SOP Act afforded, at least at some point, a remedy of which Core-Form might (and perhaps should) have availed itself—and, more importantly, one that might have avoided the Picket in which Core-Form and Mr Sneath ultimately indulged.

32    That being so, the central proposition that underpins ground one is not made good. Alive to that possibility, Core-Form and Mr Sneath press ground two, which posits, in effect, that the primary judge was impermissibly distracted, in the setting of penalties against them, by the potential (and historical) availability of the SOP Act processes. It is said that his Honour gave “undue weight” to the potential applicability of the SOP Act as a consideration that informed his assessment of the objective seriousness of the wrongdoing in which Core-Form and Mr Sneath engaged.

33    As a general proposition, the weight that should attend the individual considerations that rightly guide the exercise of a statutory discretion is a matter for the officer in whom the discretion is vested—in this case, in the primary judge. In Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1 (“Cahill”), Middleton and Gordon JJ (with whom Moore J agreed on this point) observed (at 10 [30]):

… Contentions that a trial judge did not give “sufficient weight” to a particular matter in the exercise of the sentencing discretion is not the “kind of error” an appeal court can be or should be concerned with in a sentencing appeal…

34    That observation applies with equal force to contentions about “undue weight”. A discretion such as that conferred by s 81(1)(a) of the BCIIP Act does not miscarry merely because its repository attaches, or does not attach, particular importance to particular considerations. That, of course, is not to suggest that an exercise of discretion can’t be amenable to review on the basis that it is plainly unreasonable or unjust in a way that might warrant the drawing of an inference that it was improperly exercised: House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ). But absent suggestions of that kind—and at the risk of repetition—the weight that should attend individual considerations is a matter for the repository of the discretion.

35    It follows that the second ground of appeal is also not made good.

Grounds three and four: manifest excess

36    Appeal grounds three and four charge the learned primary judge with having imposed upon Core-Form and Mr Sneath penalties that were in excess of what could legitimately be imposed. Ground three posits that the penalties that were imposed failed to strike a reasonable balance between deterrence and oppressive severity. Ground four posits that they were manifestly excessive.

37    For present purposes, the two grounds are indistinguishable. Civil penalties are, by nature, oppressive; and, if they are to realise the deterrent effect that is the sole objective that animates their imposition, they must oppress with at least some degree of severity. A penalty set at a level that is manifestly excessive is one that fails to strike a reasonable balance between deterrence and oppressive severity; and a penalty that fails to strike such a balance is one that is either manifestly excessive or manifestly inadequate. That being so, it is convenient to address the grounds together.

38    A civil penalty will only be liable to review on the grounds of manifest excess if it can be shown to have been wholly above the range of what was legitimately available to be imposed: Cahill, 14-15 [51] (Middleton and Gordon JJ). The setting of a penalty at such a level involves a miscarriage of discretion: Wong v The Queen (2001) 207 CLR 584, 605-606 [58] (Gaudron, Gummow and Hayne JJ).

39    In order that it might be said that a civil penalty has been set at a level wholly outside the range of what was legitimately available, the inadequacy or excess must be “obvious, plain, apparent, easily perceived or understood and unmistakeable”: Australian Securities and Investments Commission v Wooldridge [2019] FCAFC 172, [53] (Greenwood, Middleton and Foster JJ, citing Hanks v The Queen [2011] VSCA 7 and Zerafa v The Queen [2013] VSCA 42).

40    Grounds three and four proceed on the footing that the conduct of Core-Form and Mr Sneath was “…of short duration [and had] minimal effect”. Further, it was impressed upon the court that Core-Form and Mr Sneath were each first-time contravenors. In those circumstances, it was said that penalties set at (or slightly in excess of) 60% of the maximum available “…stand quite outside the range of penalties hitherto imposed upon a non-union party for breach of industrial legislation”.

41    Of additional significance is the submission that the respondent advanced before the primary judge. It was said before his Honour that Core-Form’s and Mr Sneath’s conduct was deserving of penalties at the “higher end of the low range”. By itself, that skeletal suggestion might not afford much assistance to the penalty-setting task; but it is difficult to see how—and we do not accept that—penalties set at (or around) 60% of the maximum that was available could be thought to fall within that range. Penalties at that level are better described as being at the high end of the mid-range.

42    Of course, the primary judge was not obliged to accept that penalties should be imposed at or around the levels that the respondent (or its predecessor) proposed; nor was his Honour prohibited from imposing anything above that range.

43    At the least, we would not hesitate to hold that the penalties imposed upon Core-Form and Mr Sneath were very much at the top end of what was legitimately available to be imposed. It might be accepted that penalties set at 60% of the maximum will not usually be warranted in the case of a cooperative, first-time contravenor whose conduct was short-lived and visited minimal adverse impacts upon those at whom it was aimed, although much may depend on the mental attitude accompanying the contravening conduct. Those realities acknowledged, there is at least some force to the submissions that were advanced in support of grounds three and four.

44    That force is amplified by consideration of other matters. There is a limit to the assistance that the court might gain from considering the penalties that were imposed in other matters, none of which can involve circumstances identical to those now in focus. There is no “tariff” that applies to conduct engaged in in contravention of s 47(1) of the BCIIP Act. Nonetheless, it is axiomatic that, absent some contrary circumstance, like conduct should attract like penalties: Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (The Palmerston Police Station Case) [2021] FCAFC 7, [37] (Katzmann J, with whom Griffiths J agreed; Bromwich J agreeing in the result), quoting Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ). A casual perusal of the authorities—including those to which the court was taken at the hearing of the appeal—tends to suggest that the civil penalties imposed upon Core-Form and Mr Sneath in the present matter are more than minimally higher than those imposed upon other cooperative, first-time contravenors whose misdeeds wrought minimal adverse consequences for those at whom they were directed.

45    Nonetheless, we are not persuaded that the penalties that were imposed upon Core-Form and Mr Sneath were set at levels that bespeak manifest excess. Although high, they were not set at levels that are obviously or plainly or unmistakably beyond what could reasonably be imposed. The worst that can be said of them is that they are higher than what other judges might consider appropriate.

46    In that regard, something should be said about Core-Form’s and Mr Sneath’s wrongdoing. The contravening conduct in which each engaged was clearly serious and deserving of significant penalty. The need generally to deter building industry participants from resorting to the kinds of unlawful and coercive tactics for which their industry is regrettably notorious should not be understated. The severity of the penalties is a proper reflection of the evaluation the primary judge made of all of the facts and circumstances, including his Honour’s unassailable finding that Mr Sneath and Core-Form’s conduct involved an indifference to the importance of complying with the law. We are not persuaded that the penalties that the learned primary judge imposed were manifestly excessive, or otherwise failed to strike a reasonable balance between deterrence and oppressive severity.

47    It follows that we would reject appeal grounds three and four.

Ground 4A: objective seriousness

48    Appeal ground 4A is related to ground four, insofar as it is put that the conduct in which Core-Form and Mr Sneath engaged was not properly to be described as “objectively serious”. In part, that was said to be so because the primary judge failed to draw a distinction between the organisation of the Picket (which was not conduct in which Core-Form and Mr Sneath engaged) and participation in it (which was).

49    We address first the suggestion that the learned primary judge failed to appreciate the distinction between organising and engaging in the Picket. That suggestion must be rejected. His Honour’s process of reasoning drew a very clear distinction, referring specifically and consistently to the CFMMEU and Mr Sutherland as having organised the Picket, and Core-Form and Mr Sneath as having engaged or participated in it. His Honour’s reasons disclose an unmistakable consciousness of the distinct species of conduct, which were assessed separately.

50    Similarly, there is no reason to doubt that his Honour regarded the organisation of the Picket as conduct that was objectively more serious—and, therefore, deserving of sterner penalty—than Core-Form’s and Mr Sneath’s mere participation in it. As much reflects in the fact that the penalties imposed upon Core-Form and Mr Sneath were lower than those imposed upon the CFMMEU and Mr Sutherland.

51    None of that forecloses upon the conclusion to which his Honour was attracted insofar as concerned Core-Form’s and Mr Sneath’s conduct: namely, that it was “objectively serious”. His Honour noted that Mr Sneath’s conduct was intentional, that no contrition had been expressed in connection with it, that no steps had been taken to ensure that it wouldn’t be repeated, and that it was engaged in in connection with a commercial dispute to which the SOP Act had applied (and in respect of which lawful remedies could have been engaged). In light of those observations, the characterisation of Core-Form’s and Mr Sneath’s conduct as “objectively serious” was not merely open; it was appropriate.

52    That is so notwithstanding other factors that tended against that assessment, including that the conduct was short-lived, that it visited minimal adverse impact, and that it was not premeditated. Although it was submitted that the learned primary judge had failed to give those matters “express consideration”, there could be no realistic suggestion that his Honour proceeded to set the penalties that were set without being conscious of them. On the contrary, the circumstances in which Mr Sneath did what he did were the subject of extensive consideration, all of which is beyond credible challenge.

53    The primary judge was entitled to characterise Core-Form’s and Mr Sneath’s conduct in the way that he did. On appeal, the court should be slow to interfere with that assessment. We do not consider that there is any occasion to interfere with it now.

54    Appeal ground 4A should be rejected.

Ground five: incorrect findings of fact

55    By appeal ground five, the learned primary judge is said to have erred by drawing two factual conclusions that were not open to be drawn on the strength of the admissions and evidence before him: specifically, that the CFMMEU’s and Mr Sutherland’s conduct in organising the Picket was “pre-meditated” and that it was “not to the point” that it did not visit quantifiable economic loss.

56    Neither of those criticisms is valid.

57    His Honour’s finding of premeditation—specifically, that the Picket was planned prior to the protest in connection with which it eventuated—was open as a matter to be inferred from other circumstances. Mr Sutherland admitted to having organised the Picket. It is plain from the circumstances—including from the participation of others apparently connected with the CFMMEU, and the presence of placards and other paraphernalia—that that endeavour required a measure of coordination and effort. The notion that it might have sprung spontaneously into place without any forethought or prior coordination is deeply unrealistic. His Honour was entitled to assess the seriousness of the CFMMEU’s and Mr Sutherland’s conduct alive to that reality.

58    That neither the CFMMEU nor Mr Sutherland admitted to having planned the Picket prior to the protest is neither here nor there. The primary judge was entitled to draw inferences in the usual way from the facts that were admitted. We do not accept that the circumstances of this case were such that the inference of premeditation was not open. Not only was it open, it was compelling.

59    As to the absence of quantifiable economic loss, his Honour’s observations bear repeating:

119.    I do not accept the submissions of the Union and Mr Sutherland that the contravening conduct is at the lower end of seriousness and a “brief inconvenience”. The contravening conduct involved the prevention of access to a working site. Although it may be that there was no quantifiable economic loss suffered in this case, that is not to the point. Interruptions to work on a construction site always come at a cost even though the cost may not be objectively quantifiable. I accept the Commissioner’s submission that the contravening conduct was inconsistent with the objects set out in s 3(1) of the BCIIP Act.

60    The nature and extent of any loss visited by the conduct that was engaged in in contravention of s 47(1) of the BCIIP Act were plainly considerations upon which the assessment of penalty was properly guided. Indeed, the court was obliged to consider them: BCIIP Act, s 81(6)(b). Given the observations replicated above, it could not fairly be said that it failed to do so. Instead, the CFMMEU and Mr Sutherland contend that the learned primary judge ought to have found that the absence of quantifiable economic loss was a factor in mitigation of penalty; and not, as his Honour put it, “not to the point”. Reliance was placed upon the observations of the full court in Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The Botany Cranes Case) [2023] FCAFC 40, [178]-[191] (Bromberg, Moshinsky and Bromwich JJ), the replication of which here is unnecessary.

61    In support of appeal ground five, it was said that:

…His Honour regarded the nature of the case before him as one in which loss or damage would be expected to occur. His Honour then failed to take into account the absence of evidence of loss as a mitigating factor. His Honour further erred in inferring that loss must have occurred, apparently as an additional factor going to seriousness. This finding was made in circumstances where both parties had submitted that there was no quantifiable loss resulting from the conduct.

(references omitted)

62    There are two threads to that contention. The first is that the primary judge wrongly failed to take account of the absence of quantifiable economic loss. That contention is self-evidently unsound. His Honour was plainly alive to that absence. That he was minded, regardless, to assess the conduct in which the CFMMEU and Mr Sutherland engaged as he did is of no moment. He was entitled to form the view that he formed as to the seriousness of that conduct, even though it did not—as he plainly accepted—visit identifiable economic loss.

63    The second aspect to the contention is that his Honour erred by finding that “loss must have occurred”. His Honour did not so find in terms; but it is clear from his observation that “[i]interruptions to work on a construction site always come at a cost” that he proceeded to assess the seriousness of the conduct through that lens, albeit appreciating that whatever cost might have been visited wasn’t “objectively quantifiable”.

64    Proceeding in that way involved no error. We confess great difficulty in understanding what part of his Honour’s observation could even potentially be disputed. It was agreed that the Picket did not visit quantifiable economic loss. That no more than reflects what is notoriously the nature of commercial construction: namely, that the costs of unforeseen work stoppages are routinely difficult—and often impossible—to reliably quantify. But could it seriously be suggested that the Picket here was—or, indeed, that any stoppage of scheduled work could be—one that occasioned no loss? At all? For anybody? Such a proposition is self-evidently unsound. The learned primary judge did no more than proceed to assess the conduct of the CFMMEU and Mr Sutherland alive to that inarguable reality.

65    Respectfully, his Honour did not err by doing so. We reject appeal ground five.

Grounds six and seven: manifest excess

66    Appeal grounds six and seven posit that the learned primary judge erred in imposing against the CFMMEU and Mr Sutherland penalties at the level that he did because doing so involved a failure to strike a reasonable balance between deterrence and oppressive severity, or otherwise resulted in the imposition of penalties that were manifestly excessive having regard to the conduct that warranted them.

67    As has already been rehearsed, there is no practical distinction to be drawn between the two grounds and the principles that apply are notorious and well-settled (see above, [37]-[39]).

68    Whether the penalties that were imposed upon them exceeded what was reasonably open to be imposed turns, in part, upon the history of statutory contravention that each of the CFMMEU and Mr Sutherland possess. Those histories—on any view, unflattering—were the subject of uncontroversial analysis in the primary judge’s reasons. It was said in support of appeal grounds six and seven that “…those histories did not justify the magnitude of the penalties imposed.”

69    That was said to be so because there was neither a finding, nor an evidential basis for finding, that “…the contravening conduct was part of any industrial strategy, or was pursuant to any policy, or reflected a calculation that the benefit of undertaking the unlawful conduct outweighed any disadvantage from potential penalty, or similar”. Instead, it was submitted that the learned primary judge “…simply reasoned from the [CFMMEU]’s ‘appalling behaviour’ to an elevated need for specific deterrence”.

70    The CFMMEU and Mr Sutherland maintain, then, that the primary judge was in error insofar as he failed to associate aspects of their historical non-compliance (on the one hand) with a particular industrial objective to the advancement of which the Picket might sensibly be said to have been directed (on the other). They contend that prior contraventions are relevant to the penalty-setting discretion only insofar as they disclose an association of that kind.

71    That principle was said to emerge from the observations made by the High Court in Pattinson, and from first instance decisions of this court since then.

72    In Pattinson, the High Court reinstated penalties that had been fixed at trial (only later to have been set aside on appeal) on the basis that they “…were no more than might be considered to be reasonably necessary to deter further contraventions of a like kind”: Pattinson, 457 [9] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). As much was said to be so because “…the CFMMEU’s determination and financial ability to adhere to its ‘no ticket, no start’ policy in defiance of the law are indisputably the most significant considerations in the assessment…of what is reasonably necessary to deter future contraventions of a like kind”: Pattinson, 474 [61] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). It was, thus, a feature of that matter that the CFMMEU’s history demonstrated a commitment to compulsory unionism (enforced via the mechanism of its “no ticket, no start” policy) to which its commitment to compliance with the law was stubbornly subordinated. It was in light of those priorities that more severe penalties were said to be justified.

73    In Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman [2023] FCA 72, Rangiah J, exercising the court’s appellate jurisdiction, had occasion to consider the point in the context of penalties that had been imposed for conduct engaged in in contravention of statutory rights of entry conferred by pt 3-4 of the Fair Work Act 2009 (Cth). His Honour perceived error in the setting of penalties at first instance and, having done so, was moved to re-exercise the relevant discretion. In the course of that endeavour, his Honour noted (at [110]):

The respondent has not attempted to demonstrate, either by reference to evidence or forensic analysis of the Union’s past contraventions, that the Union has a general policy of deliberate defiance of any or all or industrial laws whenever the Union considers that it is in its interests to do so, such that any and all future contraventions of industrial laws will necessarily fall within the description of, “future contraventions of a like kind”. Accordingly, I will not determine the appropriate penalty on the basis of what is reasonably necessary to deter the Union from engaging in deliberate contraventions of any and all industrial laws. It has not been demonstrated that all of the [Union’s] past contraventions of industrial laws will necessarily be relevant to determining the appropriate penalties in the present case.

(emphasis added)

74    With respect, his Honour’s analysis—and, in particular, the portion emphasised above—is beyond criticism. Undoubtedly, there may be cases in which past transgressions will have minimal or no bearing upon an assessment of what might be required to deter the repetition of a particular, instant species of contravening conduct. But so to observe is not to foreclose upon the possibility that past transgressions—including transgressions that involved different kinds of conduct or even different statutory norms than those in respect of which the discretion is instantly to be exercised—might permissibly inform that which deterrence (particularly specific deterrence) requires. Prior contravening conduct—of any kind—might (and often will) assist in divining the attitude of the wrongdoer against whom a penalty is to be imposed; and that attitude will, in turn, legitimately inform the level of “oppressive severity” to which the court might need to give effect in order to deter against repetition of instant contravening conduct.

75    That is very much the reality that confronted the primary judge in this case. Over the course of this century to date, the CFMMEU has been penalised vast sums of its members’ money for coercive conduct engaged in in contravention of industrial laws. It is fatuous to suggest that it has paid that price for any reason other than that it has a tendency to prefer the realisation of its own objectives—whatever they might be, at whatever given point in time—over its obligation to comply with the law.

76    That suffices to inform the requirements of specific deterrence. Contrary to the submission that was advanced, the primary judge was not obliged to identify a specific industrial objective to the advancement of which the Picket was directed, nor to associate any such objective with prior contravening conduct. That he did not do so is irrelevant.

77    On any view, the Picket was yet another manifestation of the CFMMEU’s unmistakeable and enduring indifference toward compliance with laws that it perceives as a constraint upon the realisation of its objectives, or upon the outcomes or states of affairs that it considers favourable. Mr Sutherland—whose own personal history of statutory non-compliance is also less than exemplary—appears to be but another of its “institutionalised human agents”: Australian Building and Construction Commissioner v Pattinson (2019) 291 IR 286, 311 [86] (Snaden J). With respect, the primary judge was correct so to identify; and the suggestion that is now advanced—namely, that the needs of specific deterrence in this matter did not warrant penalties at the levels that the primary judge favoured—is unduly ambitious.

78    Deterring the prospect of repeated wrongdoing necessarily requires greater incentive in the case of wrongdoers who have exhibited the levels of indifference toward compliance with the law that are fairly attributable to the CFMMEU and its officers. We do not accept—indeed, it is very plainly not the case—that the penalties that the primary judge levied against the CFMMEU and Mr Sutherland were set at levels that failed to strike a reasonable balance between deterrence and oppressive severity, or were otherwise so obviously or unmistakeably high as to traverse beyond what was reasonably open to be imposed.

79    Appeal grounds six and seven are not made good.

Disposition

80    The appeal should be dismissed. The appellants should pay the respondent’s costs.

Associate:

Dated:    9 October 2023

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