FEDERAL COURT OF AUSTRALIA
Alfred v Wakelin (No 4) [2009] FCA 267
Building and Construction Industry Improvement Act 2005 (Cth)
Workplace Relations Act 1996 (Cth)
Alfred v Wakelin (No 1) [2008] FCA 1455
Alfred v Wakelin (No 2) [2008] FCA 1543
Bluescope Steel (AIS) Pty Ltd formerly known as BHP Steel (AIS) Pty Ltd v Australian Workers’ Union, New South Wales (2004) 136 IR 48; [2004] NSWIRComm 145
Furlong v Australian Workers’ Union [2007] FMCA 443
Hadgkiss v Construction Forestry Mining and Energy Union (No 5) [2008] FCA 1040
Haynes v CI & D Manufacturing Pty Limited (No 2) (1995) 60 IR 455
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; [2007] FCAFC 65
NSD 858 of 2007
JAGOT J
26 MARCH 2009
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 858 of 2007 |
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GREGORY CHARLES ALFRED Applicant
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AND: |
ROBERT WAKELIN First Respondent
CHARLES ABELA Second Respondent
MARK BATZLOFF Third Respondent
ROBERT JONES Fourth Respondent
JOSEPH O'CONNOR Fifth Respondent
THE AUSTRALIAN WORKERS' UNION Sixth Respondent
THE AUSTRALIAN WORKERS' UNION, NEW SOUTH WALES Seventh Respondent
CONSTRUCTION, FORESTRY, MINING & ENERGY UNION Eighth Respondent
CONSTRUCTION FORESTRY, MINING & ENERGY INDUSTRIAL UNION OF EMPLOYEES, QUEENSLAND Ninth Respondent
AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS' LABOURERS FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES Tenth Respondent
FEDERATED ENGINE DRIVERS' AND FIREMENS' ASSOCIATION OF QUEENSLAND, UNION OF EMPLOYEES Eleventh Respondent
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JUDGE: |
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DATE OF ORDER: |
26 MARCH 2009 |
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WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
1. The fifth respondent, Joseph O’Connor, pay penalties as follows for his contraventions of the Building and Construction Industry Improvement Act 2005 (Cth), Workplace Relations Act 1996 (Cth) and the John Holland Engineering Pty Ltd New South Wales – SMP Certified Agreement 2005:
(a) between 6.30 am on 15 October 2005 and 6.30 am on 18 October 2005 – $6,500; and
(b) between 11.00 am on 10 November 2005 and 6.30 am on 11 November 2005 – $2,500.
2. The sixth respondent, the Australian Workers’ Union, pay penalties as follows for its contraventions of the Building and Construction Industry Improvement Act 2005 (Cth), Workplace Relations Act 1996 (Cth) and the John Holland Engineering Pty Ltd New South Wales – SMP Certified Agreement 2005:
(a) between 6.30 am on 15 October 2005 and 6.30 am on 18 October 2005 – $20,000; and
(b) between 11.00 am on 10 November 2005 and 6.30 am on 11 November 2005 – $8,000.
3. The seventh respondent, the Australian Workers’ Union, New South Wales, pay penalties as follows for its contraventions of the Building and Construction Industry Improvement Act 2005 (Cth):
(a) between 6.30 am on 15 October 2005 and 6.30 am on 18 October 2005 – $12,500; and
(b) between 11.00 am on 10 November 2005 and 6.30 am on 11 November 2005 – $5,500.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 858 of 2007 |
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BETWEEN: |
GREGORY CHARLES ALFRED Applicant
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AND: |
ROBERT WAKELIN First Respondent
CHARLES ABELA Second Respondent
MARK BATZLOFF Third Respondent
ROBERT JONES Fourth Respondent
JOSEPH O'CONNOR Fifth Respondent
THE AUSTRALIAN WORKERS' UNION Sixth Respondent
THE AUSTRALIAN WORKERS' UNION, NEW SOUTH WALES Seventh Respondent
CONSTRUCTION, FORESTRY, MINING & ENERGY UNION Eighth Respondent
CONSTRUCTION FORESTRY, MINING & ENERGY INDUSTRIAL UNION OF EMPLOYEES, QUEENSLAND Ninth Respondent
AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS' LABOURERS FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES Tenth Respondent
FEDERATED ENGINE DRIVERS' AND FIREMENS' ASSOCIATION OF QUEENSLAND, UNION OF EMPLOYEES Eleventh Respondent
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JUDGE: |
JAGOT J |
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DATE: |
26 MARCH 2009 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
1 On 17 October 2008 I made the following declarations (Alfred v Wakelin (No 2) [2008] FCA 1543):
1 Declares that each of the fifth, sixth and seventh respondents, by reason of the stoppages of work at the Lake Cowal gold mine between 6.30 am on 15 October 2005 and 6.30 am on 18 October 2005 and between 11.00 am on 10 November 2005 and 6.30 am on 11 November 2005, contravened s 38 of the Building and Construction Industry Improvement Act 2005 (Cth).
2 Declares that each of the fifth and sixth respondents, by reason of the stoppages of work at the Lake Cowal gold mine between 6.30 am on 15 October 2005 and 6.30 am on 18 October 2005 and between 11.00 am on 10 November 2005 and 6.30 am on 11 November 2005, contravened:
(a) s 170MN of the Workplace Relations Act 1996 (Cth); and
(b) the John Holland Engineering Pty Ltd New South Wales – SMP Certified Agreement 2005.
2 The fifth respondent is Joseph O’Connor. Mr O’Connor did not appear at the hearing on either liability or penalty. The sixth respondent is the national body of the Australian Workers’ Union (the AWU). The seventh respondent is the New South Wales branch of the Australian Workers’ Union (the AWU-NSW). Each was registered as an organisation of employees and building association within the meaning of Sch 1B (now Sch 1) of the Workplace Relations Act 1996 (Cth) (the Workplace Relations Act) and s 4 of the Building and Construction Industry Improvement Act 2005 (Cth) (the BCII Act) respectively. I refer to the AWU and the AWU-NSW collectively as the unions.
3 The remaining issue is the penalties which should be imposed on the respondents with respect to the contraventions.
FACTS
4 The principal facts are recorded in my reasons for decision in Alfred v Wakelin (No 2) particularly at [55] which, for convenience, I repeat:
(1) Mr O’Connor had been elected as the job representative (or delegate) on the Lake Cowal site [a project involving the development of a gold mine] for the AWU in accordance with rule 45 of the AWU rules.
(2) John Holland [a construction company engaged by the mine owner to carry out the construction project] understood Mr O’Connor to be the AWU delegate on site. This understanding was based not only on representations by Mr O’Connor and other employees but also by the AWU through Mr Goring’s conduct [Mr Goring was the AWU organiser responsible for the Lake Cowal site]. Mr Goring accepted that Mr O’Connor was the AWU delegate when he attended the site in August 2005 and dealt with Mr O’Connor, the employees and John Holland management on the basis that Mr O’Connor was the AWU delegate.
(3) Mr Goring had been involved in negotiating the certified agreement [the John Holland Engineering Pty Ltd New South Wales – SMP Certified Agreement 2005]. He knew that the Lake Cowal gold mine project was large. He thus knew that hundreds of employees, being members of different unions, were present on site and living at the accommodation site. From these circumstances he must have been aware that the union delegates (including Mr O’Connor as the AWU job representative or delegate on site) would have been involved on behalf of the AWU in dealing with issues as between AWU members on site and John Holland management on a routine basis.
(4) Mr Goring was aware that Mr O’Connor was unhappy with Mr Goring’s direction that he could not call a stop work meeting of employees and had threatened to resign as the AWU delegate. He was also aware that Mr O’Connor had not resigned and continued in the role of AWU delegate on the site. He knew too that there were many potential issues and difficulties with respect to the site.
(5) Mr Goring did not provide Mr O’Connor, John Holland management or any other person with a copy of the AWU rules. Although Mr Goring told the workers at the meeting in August 2005 that they could not hold a stop work meeting without management’s permission he did not inform any of them about limitations on the powers of Mr O’Connor as the AWU job representative or delegate or that, rather than going through their delegate, the employees should contact the AWU directly. Insofar as John Holland was concerned Mr Goring said nothing about Mr O’Connor’s role but conducted himself on the basis that that Mr O’Connor was the AWU’s delegate. He said nothing knowing that Mr O’Connor had been acting as a conduit between members and the union about issues with John Holland since at least July 2005.
(6) Contrary to the submissions on behalf of the AWU I am satisfied that Mr O’Connor took a leading role in the industrial actions on the site during October and November 2005. The conduct of other leaders (such as Mr Wakelin) who may have been even more active does not undermine the importance of Mr O’Connor’s role. He was and acted as the AWU’s delegate and encouraged and incited the members of his union to take industrial action by stopping work between 6.30 am on 15 October and 6.30 am on 18 October 2005 and between about 11.00 am on 10 November and 6.30 am on 11 November 2005 and they did so (including Mr O’Connor himself). In the lead up to the stoppage in October 2005 Mr O’Connor attended all of the critical meetings with management (along with other delegates) and took an active role in encouraging others to vote in favour of the stoppage (as his conduct with respect to Mr Best, the AMWU delegate who opposed the strike, shows). Mr O’Connor also informed John Holland management of the decision (along with the other delegates). He attended the meetings with management during the stoppage. He called Mr Goring (no doubt about the stoppage) but Mr Goring did not return his call. As to the stoppage on 10 November 2005, Mr O’Connor stood at the front of the meeting with other delegates. He was shouting and yelling (along with other delegates) and kicking dirt around after Mr Bryce’s intervention [Mr Bryce was part of John Holland’s management]. He called for the employees to get back on the buses. He thereby encouraged and incited other employees to stop work. On both occasions he, as AWU delegate and on his own behalf, voted in favour of the strikes.
5 For the purpose of these proceedings on penalty the parties also agreed on certain facts and relied on additional evidence. On that basis I make the following further factual findings relevant to penalty:
(1) In the period of 15 to 17 October 2005 approximately 273 employees (excluding management and a few others) were rostered on for work and all went on strike. 35 members of the AWU were involved in the industrial action in that period. Of those 35, 15 were also members of the AWU-NSW.
(2) In the period of 10 to 11 November 2005 approximately 280 employees (excluding management and a few others) were rostered on for work and all went on strike. 35 members of the AWU were involved in the industrial action in that period. Of those 35, 17 were also members of the AWU-NSW.
(3) During the industrial actions John Holland did not pay the wages of the employees on strike but continued to bear costs that were reimbursed by the mine owner. A rough approximation of these costs is around $49,000 per day (or $196,000 in total). Further, John Holland could not claim its profit margin on these additional costs.
(4) Benjamin Swan, the National Secretary of the AWU, has expressed the regret of the AWU and AWU-NSW that “Mr O’Connor did not notify and seek directions from the relevant AWU of NSW Organiser, Mr Goring, before taking the unlawful industrial action and/or breaching the certified agreement” and further regrets that “Mr O’Connor’s actions may have contributed to a lack of productivity at the Lake Cowal site”.
(5) According to Mr Swan, the AWU determined that it would co-ordinate the training of all delegates and officials of the AWU and its branches in late 2007 and early 2008. The AWU engaged a national campaigns and organising officer in February 2008. This officer began periodic training of AWU branches in May 2008. This training could include education about rights and responsibilities under the BCII Act and Workplace Relations Act. The AWU and the AWU-NSW would be willing to allow officers of the Australian Building and Construction Commission to conduct periodic training with AWU delegates to improve knowledge and awareness of obligations pursuant to the BCII Act.
(6) The AWU had not breached the BCII Act before October 2005. The AWU was found to have breached s 38 of the BCII Act and s 178 of the Workplace Relations Act in March 2006 (Furlong v Australian Workers’ Union [2007] FMCA 443). The AWU-NSW has not breached the BCII Act but was found to have breached an enterprise agreement in 2003 (Bluescope Steel (AIS) Pty Ltd formerly known as BHP Steel (AIS) Pty Ltd v Australian Workers’ Union, New South Wales (2004) 136 IR 48; [2004] NSWIRComm 145).
MAXIMUM PENALTIES
6 The declarations quoted in [1] above disclose that each of the AWU, AWU-NSW and Mr O’Connor contravened s 38 of the BCII Act on two occasions (between: - (i) 6.30 am on 15 October 2005 and 6.30 am on 18 October 2005, and (ii) 11.00 am on 10 November 2005 and 6.30 am on 11 November 2005). By the same industrial actions, the AWU and Mr O’Connor, but not the AWU-NSW, also contravened s 170MN of the Workplace Relations Act, as well as the certified agreement.
7 The maximum penalty for each contravention is as follows:
(1) For the AWU:
(a) in respect of s 38 of the BCII Act – $110,000 (s 49(2) of the BCII Act);
(b) in respect of the certified agreement:
(i) from 15 to 18 October 2005 – $66,000, being $33,000 for the first day, and $16,500 per day for the subsequent two days (s 178(4)(a)(iia) of the Workplace Relations Act); and
(ii) from 10 to 11 November 2005 – $33,000 (s 178(4)(a)(iib) of the Workplace Relations Act); and
(c) in respect of s 170MN of the Workplace Relations Act – $33,000 (s 170NF(2) of the Workplace Relations Act).
(2) For the AWU-NSW, in respect of s 38 of the BCII Act – $110,000 (s 49(2) of the BCII Act).
(3) For Mr O’Connor:
(c) in respect of s 38 of the BCII Act – $22,000 (s 49(2) of the BCII Act);
(d) in respect of s 170MN of the Workplace Relations Act – $6,600 (s 170NF(2) of the Workplace Relations Act); and
(e) in respect of the certified agreement:
(i) from 15 to 18 October 2005 – $13,200, being $6,600 for the first day, and $3,300 per day for the subsequent two days (s 178(4)(a)(iia) of the Workplace Relations Act); and
(ii) from 10 to 11 November 2005 – $6,600 (s 178(4)(a)(iib) of the Workplace Relations Act).
SUBMISSIONS
8 The parties agreed that: - (i) the action from 15 to 18 October 2005 should be treated as a single contravention, (ii) the action from 10 to 11 November 2005 should be treated as a separate single contravention, (iii) after determining the penalties relevant to each contravention, a single penalty could be imposed on each respondent for the separate actions in October and November 2005, and (iv) the totality principle applied where there were multiple contraventions arising from the same set of facts.
9 The parties did not agree about the capacity to treat the AWU-NSW as a manifestation of the AWU. The unions submitted that not to take into account this reality would involve a form of double penalty. Therefore the unions submitted that perhaps one penalty should be calculated for and apportioned equally between the unions. The applicant submitted that the AWU and the AWU-NSW were separate entities and separately liable for their conduct.
10 The applicant submitted that penalties at the mid to high end of the scale were warranted given: – (i) the objective seriousness of the contraventions, including the unions’ conduct in cloaking Mr O’Connor with authority and failing to take reasonable steps to ensure that he did not incite unlawful industrial action, as well as the interference with the work on the mine and loss suffered by John Holland and the mine owner, (ii) the need for deterrence, (iii) the denial of liability by the unions and their limited factual admissions, (iv) the lack of any apology to John Holland other than the recent and “lukewarm” expression of regret by Mr Swan (which did not extend to Mr Goring’s conduct, or lack of it, or the unions’ responsibility for the strikes), (v) the restricted offer with respect to training, which showed a lack of any real action by the unions to prevent a recurrence, and (vi) Mr O’Connor’s failure to appear and the time and cost associated with substituted service applications for Mr O’Connor.
11 The applicant submitted that the penalties in the present case should exceed those imposed in Alfred v Wakelin (No 1) [2008] FCA 1455. Alfred v Wakelin (No 1) involved industrial action by members of the Construction, Forestry, Mining and Energy Union (the CFMEU). Through its site delegate, Mr Wakelin, the CFMEU was found to have contravened s 38 of the BCII Act with respect to the industrial action between 10 and 11 November 2005 at the Lake Cowal gold mine. The applicant said that the penalty had to be greater than that imposed on the CFMEU ($8,000) given that: - (i) the CFMEU admitted the contravention, (ii) the proceeding against the CFMEU did not involve any alleged contravention with respect to the October 2005 industrial action and was limited to the events of 10 to 11 November 2005, and (iii) the proceeding against the CFMEU did not involve any alleged contraventions of s 170MN of the Workplace Relations Act or the certified agreement.
12 The AWU and the AWU-NSW submitted that the objective seriousness of their contraventions was low. The unions were liable only by reason of Mr O’Connor’s conduct. Had Mr O’Connor obeyed Mr Goring’s instructions then the unions would not have been placed in contravention of the statutes. This is not a case where senior management of the unions were directly involved in, or had knowledge of, the unlawful industrial action. The action was “wildcat” industrial action. Mr O’Connor deliberately gave no notice to Mr Goring and lied to Mr O’Reilly when asked about giving notice. Mr O’Connor’s conduct was undertaken in defiance of Mr Goring’s instructions. In these circumstances, the unions submitted that of the three sentencing purposes set out by Lander J in Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; [2007] FCAFC 65 at [93] – [94], those of punishment and deterrence should be given less weight than rehabilitation in the present case.
13 The unions submitted that, given the way in which the applicant had pleaded and put its case, Mr Goring’s conduct was relevant only to the case for exculpation under s 69(2) of the BCII Act and not to penalty. Further, the unions’ admissions of fact had utilitarian value and should be given weight. The applicant’s evidence of loss should not be given weight as the calculations could not be traced back to the contract. In any event, members of the unions who went on strike were only a small proportion of the entire workforce. The unions said they had good prior records. Furlong v Australian Workers’ Union involved conduct after the date of the industrial actions in the present case and thus was irrelevant. Mr Swan’s evidence was not tested and should be accepted as communicating the unions’ regret and willingness to undertake training to avoid any recurrence of the breaches. These circumstances confirmed that deterrence was of limited relevance.
14 For these reasons, the unions submitted that they should not be subjected to any penalty. If any penalties were imposed, they should be at the lower end of the scale and not exceed those in Alfred v Wakelin (No 1) given the lesser relative culpability of the unions in these proceedings compared to that of the CFMEU in Alfred v Wakelin (No 1). In this regard, the unions referred particularly to the reference in my findings in Alfred v Wakelin (No 2) (at [55](6), quoted in [4] above) to Mr Wakelin’s conduct (Mr Wakelin being the CFMEU’s site delegate at the Lake Cowal gold mine).
DISCUSSION
Principles
15 In Alfred v Wakelin (No 1) (at [28] to [31]) I referred to certain decisions which identified principles of general application to the question of penalty:
28 In Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) (1999) 94 IR 231; [1999] FCA 1714 Branson J identified certain factors relevant to the assessment of whether conduct calls for a penalty to be imposed and, if so, the amount of the penalty as including:
(a) The circumstances in which the relevant conduct took place (including whether the conduct was undertaken in deliberate defiance or disregard of the Act);
(b) Whether the respondent has previously been found to have engaged in conduct in contravention of …the Act;
(c) Where more than one contravention …is involved, whether the various contraventions are properly seen as distinct or whether they arise out of the one course of conduct;
(d) The consequences of the conduct found to be in contravention …of the Act;
(e) The need, in the circumstances, for the protection of industrial freedom of association; and
(f) The need, in the circumstances, for deterrence.
29 Observations in other cases are also relevant. In Leighton Contractors (2006) 164 IR 375; [2006] WASC 317 at [58] Le Miere J made the following comment when dealing with contraventions of the BCII Act:
[58] Contraventions of the Act, whether by individuals or organisations, are always to be treated as a serious matter. The main object of the Act is to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole.
30 In Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 at [58] Tracey J observed as follows:
…in light of the statutory purposes of the BCII Act, the need for general deterrence for contraventions of the BCII Act is particularly strong. Penalties must be imposed at a meaningful level if they are to serve as a general deterrent to others who may be disposed to engage in proscribed conduct.
31 Any penalty must nevertheless be proportionate to the conduct of the individual or organisation in contravention (Temple v Powell (2008) 173 IR 189; [2008] FCA 714 at [58]).
The relationship between the unions and the totality principle
16 I deal first with the relationship between the AWU and the AWU-NSW. The unions are separate legal entities. However, as the facts found and agreed disclose, the unions attracted liability by reason of the actions of Mr O’Connor, the unions’ job representative or site delegate, who was a member of both the AWU and the AWU-NSW. Further, the 15 to 17 AWU-NSW members who were involved in the industrial actions were each also members of the AWU.
17 In Haynes v CI & D Manufacturing Pty Limited (No 2) (1995) 60 IR 455 the Full Court of the Industrial Court of New South Wales dealt with breaches of occupational health and safety legislation by two companies. The first was the owner of the premises. The second was the lessee and employer. The second company was a wholly owned subsidiary of the first. The Full Court said (at 458):
Should the prosecution of the closely related companies attract one penalty or two penalties assessed as against each company? The evidence available showed that Manufacturing at the time of the accident employed at the Somersby plant about nine workers and that for purposes related to company structure was a company wholly-owned by Industries. The personnel on whom the ultimate responsibility for ensuring the supervision of the employees rested at the time of the accident were the same.
We have come to the view on the evidence that the connection between the two companies was so intimate that it is permissible to view the offence in a global way. We are of the view that an appropriate penalty in all the circumstances would be a total fine of $30,000.
We have considered whether it was within the authority of the Court to order the payment of the fine as if the respondents were jointly and severally liable for the total amount. Were such a course available any risk that the impecuniosity of one respondent would cause undue hardship would be avoided with management being able to determine the most convenient method of funding the fine. We have been unable to come to the view that such a course is open to the Court. In determining the way in which the totality of the fine should be apportioned, we have decided that Manufacturing and Industries are so clearly linked that each should bear the fine equally - $15,000 by Manufacturing and $15,000 by Industries.
18 I consider the position of the AWU and the AWU-NSW in the present case to be analogous. The unions are closely related. They share liability by reason of their common rules, the appointment of Mr O’Connor as the job representative or site delegate, and their overlapping membership. It is impossible to distinguish between their culpability and unrealistic to suggest that their close relationship should be disregarded. These circumstances indicate that a common sense approach to the unions’ overall culpability is required by adopting the same approach as the Full Court did in Haynes v CI & D Manufacturing Pty Limited (No 2). In this case, however, the issue is complicated by the fact that the AWU and the AWU-NSW both contravened the BCII Act on two occasions (between 6.30 am on 15 October 2005 and 6.30 am on 18 October 2005, and between 11.00 am on 10 November 2005 and 6.30 am on 11 November 2005). However, only the AWU contravened the certified agreement and, thus, the Workplace Relations Act. This raises the question of how the totality principle should be applied to the facts of the present case.
19 In Mill v The Queen (1988) 166 CLR 59 at 62 to 63 the High Court explained the totality principle as follows:
The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed (1979), pp 56-57, as follows (omitting references):
"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is `just and appropriate'. The principle has been stated many times in various forms: `when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong [']; `when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."
20 In Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [40] the High Court observed that:
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
21 The High Court continued at [43]:
The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the inquiry is not to be attended by "excessive subtleties and refinements" [Barry, The Courts and Criminal Punishments (1969), p 14]. It should be approached as a matter of common sense, not as a matter of semantics.
22 These observations inform my conclusion that the penalty in this case must recognise the close relationship between, and common source of liability of, the AWU and the AWU-NSW. The High Court’s observations also expose the difficulty of accepting the unions’ approach of imposing a single penalty on the unions for all contraventions (with the single penalty to be apportioned equally). The fact is that the AWU-NSW (unlike the AWU) did not contravene the certified agreement and, thus, the Workplace Relations Act. The AWU-NSW should not be exposed to any part of the penalty for those additional contraventions by the AWU.
23 It follows from these considerations that, on the facts of this case, the approach which best reflects the requirements that any penalty be according to a person’s “just deserts” and that the aggregate of all penalties be “just and appropriate” is to: - (i) recognise the relationship between the AWU and the AWU-NSW by determining a single penalty for each of the unions’ contraventions of the BCII Act and apportioning those penalties equally between the unions, (ii) determine single penalties for all other contraventions by the AWU, and (iii) for each of the AWU and the AWU-NSW, consider the penalties in aggregate to ensure the aggregate is “just and appropriate”.
Other conclusions
24 I do not accept the unions’ submissions that Mr Goring’s conduct is irrelevant to penalty. It is part of the circumstances informing the objective seriousness of the contraventions. As I found in Alfred v Wakelin (No 2), Mr O’Connor’s actions made the unions liable because of the context in which his actions were carried out. He was appointed the job representative or site delegate. Mr Goring knew the site was difficult. Mr Goring knew that Mr O’Connor was dissatisfied with the constraints placed upon him. Knowing all this, Mr Goring left Mr O’Connor in charge on site without giving Mr O’Connor or John Holland a copy of the unions’ rules or limiting Mr O’Connor’s apparent authority with respect to either John Holland or AWU and AWU-NSW members on site. Mr Goring did not make contact with Mr O’Connor despite a union member, Mr O’Reilly, having resigned in frustration with what he considered stupid conduct by the employees after the action between 15 and 18 October 2005 and being told that the employees (including, it must be inferred, AWU and AWU-NSW members) had gone on strike. In these circumstances the unions’ present attempts to disassociate themselves from Mr O’Connor’s conduct during the industrial actions are unpersuasive. Mr O’Connor was found to have taken “a leading role in the industrial actions on the site during October and November 2005” (Alfred v Wakelin (No 2) at [55(6)]). Further, and as noted in the same paragraph, the “conduct of other leaders (such as Mr Wakelin) who may have been even more active does not undermine the importance of Mr O’Connor’s role”. The same considerations inform the weight that should be given to the unions’ description of the industrial action as “wildcat” industrial action. Despite this, it is true that this is not a case where any union official (in the sense of an employee of the union) actually knew and endorsed the taking of the industrial actions. All of these facts are relevant to the unions’ culpability.
25 The unions admitted certain facts. Those admissions, however, related to matters about which there could be no real doubt given the available evidence. The unions contested liability and other factual matters. It is difficult to conclude that the unions’ limited admissions saved any real time or expense. The fact that the hearing extended over three days (15 to 17 September 2008) supports this conclusion. I do not consider that the unions are entitled to any material discount on account of their admissions of fact. Those admissions cannot be equated to an admission of liability at an early time, which is likely to have genuine utilitarian value.
26 I accept that the unions’ members made up a relatively small proportion of the overall workforce. I accept also that I cannot identify what effect Mr O’Connor’s actions might have had on employees who were members of other unions beyond my finding that he (along with site delegates from other unions) took a leading role in the industrial actions, which resulted in all employees going on strike for three days in October and one day in November 2005. The unlawful industrial actions must have caused substantial inconvenience to John Holland, as well as loss (mainly in the form of increased costs to the mine owner). I do not accept the unions’ submissions to the contrary. I accept, however, that the rough approximation of increased costs (about $196,000 in total) relates to the overall impact of the strikes, rather than the specific conduct of the unions. This is a factor (albeit not a major factor) that should be taken into account in determining penalty.
27 Furlong v Australian Workers’ Union involved breaches after the industrial actions in this case. However, that matter became part of the AWU’s record before penalty in the present case is determined. Bluescope Steel, equally, is part of the record of the AWU-NSW. However, despite those matters, I consider that the unions have good prior records.
28 I do not accept the unions’ submissions about the limited relevance of deterrence in the present case. In Alfred v Wakelin (No 1) (at [40]) I said that “…there is no reason to treat liability attracted under s 69 [of the BCII Act] as necessarily of a different character or consequence for the purpose of making orders under s 49”. I remain of this opinion. It is consistent with the main object of the BCII Act in s 3(1) (“to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole”). It is also consistent with the means by which that object is to be achieved as set out in s 3(2)(b), (c) and (d) in particular ((b) promoting respect for the rule of law, (c) ensuring respect for the rights of building industry participants, and (d) ensuring that building industry participants are accountable for their unlawful conduct).
29 The restricted scope of Mr Swan’s evidence also supports this conclusion about the relevance of deterrence. As the applicant submitted, Mr Swan’s expression of regret is limited. It does not extend to the circumstances which ensured that the unions could not avail themselves of the defence to liability in s 69(2) of the BCII Act (the taking of reasonable steps to prevent the industrial action). The unions could not make out that defence because of the circumstances referred to in [24] above. The unions have expressed no regret for those circumstances. This indicates that general and specific deterrence remain relevant considerations.
30 The steps taken by the unions to initiate co-ordinated training are commendable. However, and as the applicant submitted, Mr Swan’s evidence discloses that the unions have not yet included training with respect to rights and responsibilities under the BCII Act. Nor have the unions yet made contact with the Australian Building and Construction Commission with respect to such training. The unions were found liable for the industrial actions in October and November 2005 in Alfred v Wakelin (No 2), delivered on 17 October 2008; it is now March 2009. Further, relevant training could have been provided long ago without any prejudice to the unions’ defence of these proceedings.
31 I do not accept that no penalty should be imposed on the unions. That would be inconsistent with the objective seriousness of the contraventions and the unions’ culpability for the commission of those contraventions. I also do not accept that the penalties should not exceed those in Alfred v Wakelin (No 1). The unions’ submission that their culpability was of a lesser relative seriousness than that of the CFMEU failed to take into account a number of relevant factors. The CFMEU admitted liability relating to the November 2005 industrial action. The applicant did not press its case against the CFMEU with respect to the industrial action in October 2005. By the agreed facts between the applicant and the CFMEU, liability was limited to breach of s 38 of the BCII Act and did not extend to breaches of the certified agreement and, thus, the Workplace Relations Act. The agreed facts did not permit any finding to be made about the number of employees involved in the industrial action (see Alfred v Wakelin (No 1) at [33]). The question of penalty in the present case is to be determined in a different context. The unions defended all charges and were unsuccessful. They have been found liable for breaches of the BCII Act, the certified agreement and, thus, the Workplace Relations Act. Their liability relates to the industrial action in October and November 2005 (in circumstances where the action in October 2005 extended over three days). The evidence was also more extensive in the present case and enabled findings about the number of employees involved in the industrial actions, both in total and belonging to the AWU and the AWU-NSW. In other words, despite the common substratum of facts, the circumstances relevant to penalty in the present case bear little resemblance to those prevailing in Alfred v Wakelin (No 1).
32 I do not accept the applicant’s submission that penalties at the higher end of the range are warranted. The penalty “must be proportionate to the gravity of the offence committed” (Hadgkiss v Construction Forestry Mining and Energy Union (No 5) [2008] FCA 1040 at [83]). The unions did take some steps in an (albeit unsuccessful) attempt to restrain Mr O’Connor. The steps were insufficient and not reasonable in all of the circumstances, but at least something was done. Employed officials of the unions did not have actual knowledge of, or endorse, Mr O’Connor’s actions. The industrial actions were limited to three days in October 2005 and one day in November 2005. The actions were unlawful and unjustifiable but were not calculated to intimidate or maximise harm to John Holland. AWU and AWU-NSW members were a relatively small proportion of the overall workforce. Mr O’Connor did not act alone. Other union site delegates were also responsible for inciting the employees to take industrial action. These considerations indicate that a more moderate level of penalty is required than that for which the applicant advocated in order to reflect the seriousness of the breaches and the unions’ culpability for them.
Penalties
33 As discussed, I consider that I should deal with the breaches of the BCII Act by the AWU and AWU-NSW together. They are each exposed to a maximum penalty of $110,000 for each of the industrial actions in October and November 2005. Having regard to all of the circumstances to which I have referred, I consider that the October 2005 breaches of the BCII Act call for a penalty of $25,000. The November 2005 breaches of the BCII Act call for a penalty of $11,000. The close relationship between the AWU and the AWU-NSW to which I have referred above indicates that it would be unfair and disproportionate to the unions’ true culpability for these penalties to be imposed on each of them. Consistent with the approach of the Full Court of the Industrial Court of New South Walesin Haynes v CI & D Manufacturing Pty Limited (No 2), I apportion the penalties 50% each between the AWU and AWU-NSW for these breaches ($12,500 and $5,500 each).
34 The AWU’s contraventions of the Workplace Relations Act arose out of the same set of circumstances as the breaches of the BCII Act. Standing alone these contraventions warrant penalties as follows: - (i) ss 178(4)(a)(iia) and (iib) of the Workplace Relations Act respectively - $11,500 for the October 2005 industrial action (on the basis of a penalty of $7,500 for the first day of the contravention and $2,000 for each day thereafter) and $3,000 for the November 2005 industrial action, and (ii) s 170MN of the Workplace Relations Act - $7,500 for the October 2005 industrial action and $3,000 for the November 2005 industrial action.
35 Accordingly, and in summary, the penalties for each union for each contravention (before considering the totality principle) are as follows:
(1) The AWU:
October 2005 (total: - $31,500)
(a) BCII Act (s 49(2)): - $12,500;
(b) Workplace Relations Act (s 178(4)(a)(iia)): - $11,500; and
(c) Workplace Relations Act (s 170MN): - $7,500.
November 2005 (total: - $11,500)
(d) BCII Act (s 49(2)): - $5,500;
(e) Workplace Relations Act (s 178(4)(a)(iib)): - $3,000; and
(f) Workplace Relations Act (s 170MN): - $3,000.
Aggregated total: - $43,000
(2) The AWU-NSW:
October 2005
BCII Act (s 49(2)): - $12,500
November 2005
BCII Act (s 49(2)): - $5,500
Aggregated total: - $18,000
36 I must now determine whether the sum of these individual penalties is proportionate to the totality of the unions’ contraventions. On the facts of the present case I consider the aggregated penalties for the AWU (but not the AWU-NSW) excessive. To reflect the AWU’s true culpability, the penalties must be reduced. Given the nature and circumstances of the conduct contravening the legislation, I consider that the application of the totality principle requires penalties as follows for the AWU:
October 2005 (total: - $20,000)
(a) BCII Act (s 49(2)): - $12,500;
(b) Workplace Relations Act (s 178(4)(a)(iia)): - $5,500; and
(c) Workplace Relations Act (s 170MN): - $2,000.
November 2005 (total: - $8,000)
(d) BCII Act (s 49(2)): - $5,500;
(e) Workplace Relations Act (s 178(4)(a)(iib)): - $1,500; and
(f) Workplace Relations Act (s 170MN): - $1,000.
Aggregated total: - $28,000.
37 However, I consider the total penalties for the AWU-NSW just and appropriate without any need for further adjustment.
38 No suspension of these penalties is warranted in the circumstances.
Mr O’Connor
39 Mr O’Connor did not appear. Accordingly, I know little, if anything, about his circumstances. I cannot take into account his financial position because I am unaware of it. From the fact that he has not appeared and has conducted himself so that both parties have had to make applications for substituted service, I infer that he has no contrition for his unlawful conduct or the consequences that conduct created for John Holland, the owner of the mine or, indeed, the AWU and the AWU-NSW. I can also infer that, apart from the directions given by Mr Goring, Mr O’Connor was not provided with any relevant training about his responsibilities under the BCII Act and did not have access to the unions’ rules (as Mr Goring had not provided them to Mr O’Connor).
40 I consider that Mr O’Connor should be penalised as follows (before consideration of the totality principle):
October 2005 (total: - $9,000)
(a) BCII Act (s 49(2)): - $5,000;
(b) Workplace Relations Act (s 178(4)(a)(iia)): - $2,500 (being $1,500 for the first day of the contravention and $500 for each day thereafter); and
(c) Workplace Relations Act (s 170MN): - $1,500.
November 2005 (total: - $3,520)
(d) BCII Act (s 49(2)): - $2,200;
(e) Workplace Relations Act (s 178(4)(a)(iib)): - $660; and
(f) Workplace Relations Act (s 170MN): - $660.
Aggregated total: - $12,520
41 Having regard to the totality principle, I consider that the penalties must be reduced to justly and appropriately reflect Mr O’Connor’s true culpability. On that basis I consider penalties as follows should be imposed on Mr O’Connor:
October 2005 (total: - $6,500)
(a) BCII Act (s 49(2)): - $5,000;
(b) Workplace Relations Act (s 178(4)(a)(iia)): - $1,000; and
(c) Workplace Relations Act (s 170MN): - $500.
November 2005 (total: - $2,500)
(d) BCII Act (s 49(2)): - $2,200;
(e) Workplace Relations Act (s 178(4)(a)(iib)): - $200; and
(f) Workplace Relations Act (s 170MN): - $100.
Aggregated total: - $9,000
42 No suspension of these penalties is warranted in the circumstances.
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I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. |
Associate:
Dated: 26 March 2009
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Counsel for the Applicant: |
Mr R M Goot SC with Mr M S White |
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Counsel for the Sixth and Seventh Respondents: |
Mr R R Tripodi |
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Solicitor for the Applicant: |
Minter Ellison Lawyers |
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Solicitor for the Sixth and Seventh Respondents: |
Maurice Blackburn Pty Limited |
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Date of Hearing: |
16 March 2009 |
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Date of Judgment: |
26 March 2009 |
