FEDERAL COURT OF AUSTRALIA

Hamberger v Construction Forestry Mining & Energy Union [2002] FCA 585

INDUSTRIAL LAW - Contravention of s 298P(3) and s 298K of the Workplace Relations Act 1996 (Cth) - penalty - matters to be taken into account - number of contraventions - whether one course of conduct - amount of penalty - where need for deterrence.

Workplace Relations Act 1996 (Cth) s 170NF(1), s 298K, s 298P(3)

Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 Appl

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v DMG Industries Pty Ltd (1999) 89 IR 360 Appl

The Age Company Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2000] FCA 1757 Appl

Seven Network Operations Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 672 Appl

Employment Advocate v National Union of Workers [2000] 99 IR 376 Dist

JONATHAN HAMBERGER, THE EMPLOYMENT ADVOCATE v

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, AUSTRALIAN

BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS’ LABOURERS’

FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES, JAMIE

McHUGH, MICHAEL RAVBAR AND DARREL KERSEY

Q43 OF 1999

COOPER J

BRISBANE

9 MAY 2002

THE COURT ORDERS THAT pursuant to s 170NF(1) of the Workplace Relations Act 1996 (Cth) :

1.         A penalty of $7,500 be imposed on the first respondent for the contravention of s 298P(3)(a) and (b) of the Act on 29 January and 26 February, 1999.

2.         A penalty of $7,500 be imposed on the second respondent for the contravention of s 298P(3)(a) and (b) of the Act on 29 January and 26 February, 1999.

3.         A penalty of $1,500 be imposed on the third respondent for the contravention of s 298P(3)(a) and (b) of the Act on 29 January and 26 February, 1999.

4.         A penalty of $750 be imposed on the fourth respondent for the contravention of s 298P(3)(a) and (b) of the Act on 29 January 1999.

5.         Each of the penalties so imposed be paid into the Consolidated Revenue Fund.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     These proceedings were instituted by the Employment Advocate under the provisions of the Workplace Relations Act 1996 (Cth) (“the Act”) and involved conduct which occurred on 20 and 29 January 1999 and 26 February 1999.  On 22 December, 2000, I made findings and declarations that the first, second, third and fourth respondents had engaged in conduct in contravention of s 298P(3) of the Act on 29 January 1999 and that the first, second and third respondents had engaged in conduct in contravention of s 298P(3) of the Act on 26 February 1999.

2                     The respondents sought leave to appeal from the declarations made by me.  Leave was refused by a Full Court of this Court on 18 October 2001.  The matter was re-listed on 7 February 2002 for hearing on the question of the penalty to be imposed for such contraventions.  The hearing on penalty was heard at the same time as the hearing on penalty in proceedings Q103 of 1999 between the same applicant and first and second respondents.

3                     The full circumstances of the contraventions can be found in my reasons for judgment in [2000] FCA 1923.

4                     The contraventions which I found occurred on 29 January 1999 were against s 298P(3)(a) and (b) of the Act.  Those provisions provide :

“298P(3)         An industrial association, or an officer or member of an industrial association, must not:

(a)       advise, encourage or incite an employer;  or

(b)       organise or take, or threaten to organise or take, industrial action against an employer with intent to coerce the employer;

to take action in relation to a person that would, if taken, contravene section 298K.”

Section 298K(1) of the Act provides :

“298K(1)        An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:

(a)       dismiss an employee;

(b)       injure an employee in his or her employment;

(c)        alter the position of an employee to the employee’s prejudice;

(d)       refuse to employ another person;

(e)        discriminate against another person in the terms or conditions on which the employer offers to employ the other person.”

5                     The issue concerned attempts by the respondents to get an employer to take action against an employee, Michael Albert Leroy (“Leroy”) because the employee refused to join an industrial association.

6                     The findings which I made, on the evidence which I accepted with respect to the events of 29 January 1999 were as follows :

“[25]  On 29 January 1999, McHugh, Kersey and Ravbar were present on site.  McHugh says the purpose of the visit was ‘to speak with workers about membership matters’.  Again McHugh entered the site using his permit to enter which he held as an official of the CFMEU.  He spoke with Leroy and told him that he owed the BLF $985 in outstanding membership fees.  Leroy said words to the effect ‘I’m not joining your Union and you can talk to my solicitor.’

[26]    There is substantial agreement between McHugh and Leroy as to what occurred between them.  I accept Leroy as an honest witness and I accept his evidence that the following conversation occurred between him and McHugh :

            ‘McHugh said words to the effect:  “We are not after the money all we are after is for you to get back in the union.”

            I said words to the effect:  “Look I have already told you this is against my principles and you won’t get me to join the union.”

            McHugh said words to the effect:  “Well I have to go and see Roger to get him to remove you from the site.”

            I said words to the effect:  “Well go ahead matey see if I care”.’

[27]    McHugh deposed he stated words to the effect :

            ‘Look mate, whether you like it or not, you are a member of ours and its on the computer.

            He said words to the effect:

                        “Show me where”.

            I said words to the effect:

                        “I can’t show you right now for fucks sake, but I am telling you it is there.”

            He said words to the effect:

                        “Well I want to see some proof.”

            I said words to the effect:

                        “We would have a card in the office in Brisbane which you would have signed.”

            He said words to the effect:

                        “Well show it to me.”

            I said words to the effect:

                        “I will get the fucking card and show it to you.”

            He said words to the effect:

                        “Good, get the card and I will give it to my Solicitor.”

            He then said words to the effect:

                        “Fuck your Union.  You are nothing but a pack of communists, and I don’t believe in your Union.  I left my country to get away from you bastards.”

            I said words to the effect:

                        “I don’t give a fuck what your thoughts of us are.  You don’t mind reaping the wages and conditions we negotiate to have provided on site.”

I then pointed to the sticker on my helmet which said “Scab”.  I said words to the effect :

                        “The people who accept and receive benefits and conditions we provide are known to us as scabs.”

            He said words to the effect:

                        “I am not paying any money.  It is against my principles.”

            I said words to the effect:

                        “Look mate, I am not asking you to pay the full amount.  I am asking you to pay $220.00 and I will talk to my office to see if I can get the rest of the debt cleared because we do have the right to pursue two terms from you.”’

[28]    In cross-examination, Leroy agreed that McHugh had made such a statement but he would not agree that the further statement about getting Leroy back in the union was not made.  Further, it was not suggested to Leroy that McHugh did not use the words ‘Well I have to go and see Roger to get him to remove you from the site.’  The fact that McHugh admits that he then sought the removal of Leroy from the site by Lilley persuades me that the evidence of Leroy is correct and should be accepted.”

7                     There was a meeting in the site office subsequent to this exchange between McHugh and Leroy.  In respect of that meeting I accepted the evidence of Lilley the manager and controller of the employer of Leroy and found :

 “[31]Lilley gave the following evidence of his conversation with Ravbar in the site office :

            ‘12.      At that point the four of us went to the McConnell Dowell office.  Gary Parkinson and Jim, one of the engineers, were there when the following exchange occurred:

            Ravbar said:  “We want Leroy removed from the site.”

            I said:  “Why?”

            Ravbar said:  “Because he doesn’t want to join the union.”

            I said:  “I was of the understanding that it was not compulsory for the men to join the union.”

            Ravbar said:  “It is if they want to work on this site.”

            I said:  “Are you asking me to sack Leroy?”

            Ravbar said:  “I can’t say that, that’s up to you but transfer him to another site.”

            I said:  “The work that I had elsewhere is winding down and Leroy is my main steel fixing foreman and I need him to run this job.”

            Ravbar started laughing and said  “It all comes down to a business decision Roger.”

            McHugh said:  “We can cause other hassles on your other sites.”

            I said:  “I refuse to talk to you anymore because of your abusive manner.”’ ”

8                     As to the events of 26 February 1999, I found :

“[43]  On 26 February 1999, McHugh and Kersey were again on the site.  There was a confrontation between McHugh and Leroy which I find was instigated by McHugh.  I accept the evidence of Leroy and Parkinson as to what occurred as both are in substantial agreement.  The evidence of McHugh is to like effect.  McHugh, I find, was surprised to find Leroy on site and stated that Leroy should not be on the site, should not be working on the site, and should have been thrown off the site.

[44]    A short time after the confrontation, McHugh went to the site office of McConnell Dowell and sought inspection of the induction form relating to Leroy.  When the card could not be found, McHugh alleged that Leroy had not done an induction course and stated that in consequence, Leroy must be removed from the site. 

[45]    When an induction card was ultimately found, McHugh compared the signature of Leroy on that document with the signature on a union application form dated 1995.  He then told Parkinson that Leroy owed the union over $1,000 and that McConnell Dowell could legally remove Leroy from the site.

[46]    As a result of a telephone call from Parkinson, Lilley arrived on the site.  I accept Lilley’s version of what then occurred as set out in his affidavit :

            ‘Kersey said:  “Hi, Roger”.

            I said:  “What’s the idea of you guys coming on site, abusing my men and disrupting my site?”

            McHugh said:  “He’s a fucken scab, he owes us a thousand dollars from back dues.  We’ll get our money one way or the other.”

            I said:  “I’ve had enough of this abuse, you’re the most [arrogant] person I’ve met, every time you have been on site you have abused me or one of my workers.  I’ve had enough.”

            McHugh said:  “I don’t give a fuck about you, how many jobs do you have in Brisbane.”  He then pulled a pager from his pocket and said; “Within two minutes I’ll notify all the delegates to target all your sites.”

            I said:  “And what are you going to do?”

            McHugh said:  “We can stop all the work if we have to.”’

[47]    The version of the conversation recalled by Parkinson is to similar effect and is as follows :

            ‘Lilley said words to the effect:  “Why are you harassing my men?”

            McHugh said words to the effect:  “Because he owes the union money and he shouldn’t be on site.”

            Lilley said words to the effect:  “I have just about had enough of the unions victimising my company and my men.”

            McHugh said words to the effect:  “I hear you have got a job down in Brisbane all I have to do is put your name on this pager and I can send it around to all the organisers in Brisbane so that they watch out for you.”  He then pulled the pager from his pocket.  The conversation ended soon thereafter.’

[48]    I do not accept McHugh’s assertions that he did not suggest to Lilley that Leroy should be put off the site.  The focus of McHugh on 26 February 1999, so far as Leroy was concerned, was to procure his removal from the site.  I accept the evidence of Parkinson that McHugh stated to Lilley in response to the question as to the reason for the harassment included the statement that Leroy should not be on site.”

9                     The applicant submits on penalty that :

(a)        the conduct on each occasion should be seen as separate and distinct conduct which was not simply one course of conduct;

(b)        in consequence separate penalties should be imposed for each contravention on 29 January 1999 and 26 February 1999 without discount.

10                  The respondents submit that the events should be seen as arising out of, or in the course of, one course of conduct.  At worst, they submit there were two breaches arising in a single course of conduct and they should be treated on that basis.

11                  The conduct which occurred on 29 January 1999 took as its focus the removal of Leroy from the site because he would not join an industrial association.  That conduct was engaged in again on 26 February 1999 with a view to achieving the same purpose.  In my view, it is appropriate to treat all of the incidents as having arisen in a single course of conduct aimed at procuring the removal of Leroy from the site.  Although part of a single course of conduct, and thus not attracting a separate penalty for each separate contravention, the persistence in the conduct over time is a circumstance of aggravation when one looks at the culpability of the conduct viewed as a whole.

12                  The applicant submits that the conduct of the respondents strikes at the heart of the principles of freedom of association created by Part XA of the Act, that it was done in deliberate defiance or disregard of the relevant provisions of the Act and that if the conduct had procured the removal of Leroy from the site, the consequences would have been serious.

13                  The conduct, the applicant submits, requires the imposition of penalties in the upper end of the range, which will act as deterrents to others who might be minded to engage in such conduct.

14                  The respondents submit that there should be no penalties against the first and second respondents, the industrial associations, and, only at the lower end of the range for the individual union officials, the third and fourth respondents.  They submit that the penalties sought by the applicant bear no proportion to the contraventions which occurred.

15                  The factors relevant to the imposition of a penalty for a contravention of Part XA of the Act have been considered in a number of cases, and include :

(a)        the circumstances in which the conduct occurred;

(b)        seriousness and audacity of breaches;

(c)        the deliberateness of the breach;

(d)        past record of like behaviour;

(e)        any contrition;

(f)         harmful consequences suffered;

(g)        the need for deterrence.

(See for example, Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 at 232, [8];  Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v DMG Industries Pty Ltd (1999) 89 IR 360 at 364 - 365;  The Age Company Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2000] FCA 1757 at [19];  Seven Network Operations Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 672 at [3] - [4];  Employment Advocate v National Union of Workers [2000] 99 IR 376 at 377 - 378).

16                  The conduct of the third respondent was completely unacceptable.  It was abusive, threatening and intended to intimidate or coerce others to act to achieve the outcome the third respondent wished to achieve.  It was deliberate and sustained and carried on in the face of assertions from those entrusted with responsibility for industrial relations on the employer side that it was unlawful.  The penalty to be imposed against the third respondent requires that it act as a deterrent to him and others who might be like-minded to engage in the “bully-boy” practice of industrial relations.  It is difficult to see anything ameliorating in the circumstances of the third respondent’s behaviour, other than it was unsuccessful in bringing about the desired result.

17                  The fourth respondent may not have adopted the belligerent abusive approach of the third respondent.  However, he clearly knew that he could not lawfully engage in the conduct which he did, as some of his statements to Lilley on 29 January 1999 at the McConnell Dowell site office indicate.  The penalty to be imposed on the fourth respondent must reflect that his involvement is limited to the events which occurred on 29 January 1999.

18                  Counsel on behalf of the first and second respondents submit that no penalty ought to be imposed against the first and second respondents because they have only been caught by the deeming provision in s 298B(2) of the Act.  In that situation, he submits there can be no question of a deliberate disregard and defiance of the provisions of Part XA of the Act by the organisations, and, no matter what can be said about the conduct of their officers, the same cannot be said of the organisations.

19                  The submission as to the position of the first and second respondents as to their responsibility for the conduct of their officers by virtue of the operation of s 298B(2) is, in my view, misconceived.

20                  The statutory intention underlying s 298B(2) is to make the organisation responsible for the conduct of its officers.  It is intended to encourage those organisations to take active steps to control the actions of its officers, servants and agents to ensure as far as is possible by taking all reasonable steps, that the conduct of them is not in contravention of Part XA of the Act.  It was not intended that an industrial organisation could avoid the serious consequences of conduct engaged in by its officers, servants or agents, deliberately and flagrantly in contravention of the Act, by simply doing nothing to control or prevent it, or by turning a blind eye to the conduct.  If an industrial organisation turns a blind eye, or does not concern itself as to the manner and methods employed by officers, servants or agents of the industrial organisation to achieve what they see as the organisation’s ends, the organisation is at risk of being heavily penalised where the means adopted are prohibited and exhibit the worst features of the proscribed conduct.

21                  In the present case, the first and second respondents have chosen to give no evidence as to what those in authority knew of the conduct of the third and fourth respondents at and prior to the matters complained of.  Nor is there any evidence as to what, if any, action was taken by the organisation to counsel, or moderate the behaviour of, the officers for the future.

22                  The absence of any material in this regard, counsel for the respondents submits, means that a penalty must be imposed on the basis that there has been no prior infringement by the organisations or the officers, and that there has been no subsequent infringing conduct.

23                  In my view, the absence of material of this type means that there is nothing in the circumstances to ameliorate the penalty to be imposed having regard to the seriousness of the conduct if left unexplained.  It is simply a case that nothing is known as to the antecedents and subsequent conduct of those who have committed the breach.

24                  In this respect, the case is distinguishable from the decision in Employment Advocate v Nation Union of Workers relied upon by the first and second respondents as authority for the proposition that no penalty should be imposed on them.  In the NUW Case, those in authority in the union gave evidence which was not challenged, that at no stage did they have any knowledge of the conduct of the officer or give the officer any specific authorisation for his conduct:  99 IR 376 at 381 par [21].  It was this circumstance which persuaded Einfeld J not to impose a penalty on the union.  That is not this case.

25                  In the conduct of these proceedings, there is nothing to suggest that the organisations regarded anything that the third or fourth respondent did in the circumstances complained of as wrong.  Further, there is nothing to suggest that either the organisations or the officers are in the slightest degree contrite for what has occurred.

26                  I have been referred to a number of decisions by both the applicant and the respondents as to penalties imposed in other cases.  Ultimately, it is a question of considering the conduct engaged in in each particular case.  Regard must be had to the severity of the conduct engaged in as a whole, and, a penalty imposed which is just and appropriate to that conduct.

27                  The conduct of the third and fourth respondents on 29 January and the third respondent on 26 February 1999 involved the first and second respondents in these contraventions.  The conduct was  part of an ongoing course of conduct directed at an individual employee who wished to exercise his right not to be a member of an industrial organisation.  The conduct constituted a serious contravention of Part XA, and a single penalty must in the aggregate reflect the number of breaches of the Act involved in it.  With respect to the first, second and third respondents there were two breaches of s 298P(3) of the Act over the course of the conduct.  A penalty of $7,500 against each of the first and second respondents is appropriate in the circumstances of this case.

28                  The conduct of the third respondent was serious.  It was submitted by counsel for the respondents that there is no evidence that the officers , including the third respondent, knew the provisions of the Act or that their conduct was in breach of it.  I do not agree.  There is ample evidence that the third respondent knew what he was doing was wrong and contrary to the Act, he asserted that he knew what the law was.  If he did not, then he wilfully persisted in the conduct, when on notice that it was unlawful, without making inquiry as to whether it was lawful or not.  A penalty of $1,500 is appropriate to his conduct in this case.

29                  The conduct of the fourth respondent is limited to what occurred on 29 January 1999.  While the conduct is serious, and I am satisfied that he knew that what he was doing was prohibited by the Act, his conduct lacks the worst features attributable to the conduct of the third respondent.  A penalty of $750 against the fourth respondent is an appropriate one.

Associate:

Dated:              9 May 2002