FEDERAL COURT OF AUSTRALIA

Hardwick v Australian Manufacturing Workers’ Union [2010] FCA 818

THE COURT ORDERS THAT:

1.                  A penalty of $15,000 is imposed on the First Respondent for its contravention of s 44(1) of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) by reason of it being vicariously liable for the conduct of the Fifth Respondent (Mr Warren) referred to in paragraph 5 of this Order.

2.                  A penalty of $14,000 is imposed on the Second Respondent for its contravention of s 44(1) of the BCII Act by reason of it being vicariously liable for the conduct of the Sixth Respondent (Mr Lee) referred to in paragraph 6 of this Order.

3.                  A penalty of $11,000 is imposed on the Third Respondent for its contravention of s 44(1) of the BCII Act by reason of it being vicariously liable for the conduct of the Seventh Respondent (Mr Mooney) referred to in paragraph 7 of this Order.

4.                  A penalty of $9,000 is imposed on the Fourth Respondent for its contravention of s 44(1) of the BCII Act by reason of it being vicariously liable for the conduct of the Eighth Respondent (Mr Parker) referred to in paragraph 8 of this Order.

5.                  A penalty of $5,000 is imposed on Mr Warren by reason of him, in contravention of s 44(1) of the BCII Act, organising the protests of the Patricia-Baleen Gas Plant located in Ewings Marsh Road, Newmerella, in Gippsland, Victoria (the Site) on various occasions between 29 November 2008 and 18 December 2008 with the intent to coerce certain sub-contractors working at the Site to agree to enter into building agreements under Pt 8 of the Workplace Relations Act 1996 (Cth) (now repealed) (building agreements).

6.                  A penalty of $6,000 is imposed on Mr Lee by reason of him, in contravention of s 44(1) of the BCII Act, organising the protests of the Site on various occasions between 29 November 2008 and 27 March 2009 with the intent to coerce certain sub-contractors working at the Site to agree to enter into building agreements.

7.                  A penalty of $4,000 is imposed on Mr Mooney by reason of him, in contravention of s 44(1) of the BCII Act, organising the protests of the Site on various occasions between 2 December 2008 and 27 March 2009 with the intent to coerce certain sub-contractors working at the Site to agree to enter into building agreements.

8.                  A penalty of $3,500 is imposed on Mr Parker by reason of him, in contravention of s 44(1) of the BCII Act, threatening to shut down the Site on 12 February 2009, such threat being made with the intent to coerce certain sub-contractors working at the Site to agree to enter into building agreements.

9.                  Each of the penalties referred to above be paid to the Consolidated Revenue Fund within 30 days of this Order. 

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. 

REASONS FOR JUDGMENT

INTRODUCTION

1                     On 19 November 2009, the Applicant, Shaun Hardwick, an Australian Building and Construction Inspector appointed pursuant to s 57 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act), commenced these proceedings against the Australian Manufacturing Workers’ Union (AMWU), the Australian Workers’ Union (AWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (CEPU), the Construction, Forestry, Mining and Energy Union (CFMEU), Greg Warren (Mr Warren), Terry Lee (Mr Lee), Peter Mooney (Mr Mooney) and John Parker (Mr Parker) for contraventions of ss 38 and 44 of the BCII Act.  Mr Hardwick is a person eligible to bring proceedings for contravention of a civil penalty provision pursuant to s 49(6) of the BCII Act. 

2                     Worley Parsons Services Pty Ltd (Worley Parsons) was responsible for construction work on the upgrade of the Patricia – Baleen Gas Plant located in Ewings Marsh Road, Newmerella, in Gippsland, Victoria (the Site / Project).  Worley Parsons engaged a number of sub-contractors to work on the Project including:

1.                  Ausscom Pty Ltd;

2.                  GBG Concrete and Construction Pty Ltd;

3.                  Primaweld Engineering Pty Ltd; and

4.                  from January 2009, Ashvale Pty Ltd (trading as Instrument Installation Services),

(collectively, the sub-contractors).

3                     Each of the sub-contractors had a building agreement within the meaning of that term under the BCII Act in respect of work to be performed on the Project.  Each of the sub-contractors also had a workplace agreement pursuant to Pt 8 of the Workplace Relations Act 1996 (Cth) (the WR Act) in respect of work to be performed on the Project.  The workplace agreements were non-union agreements, that is, they did not have an industrial organisation as a party to the agreement.  Each of the individual respondents wanted the sub-contractors to work under union building agreements. 

AGREED FACTS AND AGREED PROPOSED ORDERS

4                     By a Statement of Agreed Facts, admissions and proposed orders between the Applicant, the CFMEU and Mr Parker (an organiser of the CFMEU) (the CFMEU Respondents) dated 1 July 2010, Mr Parker admitted contravening s 44 of the BCII Act on 12 February 2009 and the CFMEU admitted contravening s 44 of the BCII Act by reason of its vicarious liability for the unlawful conduct of Mr Parker arising from the following events:

1.         on 3 December 2008, Mr Parker had a conversation with Gordon Waterfall (Mr Waterfall), the Project Manager for Worley Parsons, which included:

(a)        Mr Parker stating that he wanted union agreements with the sub-contractors in place on the Project and that he wanted to meet Mr Colin Milne (Mr Milne), the Industrial Relations Manager on the Project for Worley Parsons, to negotiate such agreements;

(b)        Mr Waterfall stating that Worley Parsons were happy with the non-union agreements with the sub-contractors and there would be no change to this situation; and

(c)        Mr Parker stating that he did not want a fight but he was prepared to have one if need be.

2.         on or about 22 January 2009, Mr Milne and Mr Waterfall met with Mr Parker and a CFMEU organiser, Mr Tom Malone (Mr Malone), at the CFMEU Morwell Office, at which meeting Messrs Parker and Malone said to Milne that they wanted to get rid of the non-union agreements at the Project and replace them with union agreements that would cover the relevant work on the Project;

3.         on 12 February 2009, whilst Mr Parker was outside the front gate of the Project, Mr Parker had a conversation with Mr Jerome Cooney (Mr Cooney), an Industrial Relations Consultant for Worley Parsons, which included:

(a)        Mr Parker stating to Mr Cooney that “the time for talk is over” and that Worley Parsons had “not been communicating with the CFMEU”;

(b)        Mr Cooney telling Mr Parker that the Project was subject to the non-union agreements with the sub-contractors and that if Mr Parker engaged in industrial action it would cost these employees four hours’ pay;

(c)        Mr Parker stating that “the boys would be losing eight hours’ work” because none of the workers would be attending for work that day;

(d)        Mr Parker further stating that there should be no non-union agreements in Gippsland; and

(e)        Mr Parker further stating words to the effect that he intended to shut the job down.

5                     By a Statement of Agreed Facts, admissions and proposed orders between the Applicant and the remaining respondents (the non-CFMEU Respondents) dated 2 July 2010:

1.         each of the individual respondents, Mr Warren (an AMWU organiser), Mr Lee (an AWU organiser) and Mr Mooney (a CEPU organiser) admitted contravening s 44 of the BCII Act; and

2.         each of the AMWU, the AWU and the CEPU admitted contravening s 44 of the BCII Act by reason of its vicarious liability for the unlawful conduct of their respective union organiser.

6                     Mr Lee, Mr Warren and Mr Mooney admitted they organised and / or participated in protests at the Project with the intent to coerce the sub-contractors (including by seeking to coerce Worley Parsons to apply such coercion on the sub-contractors) to enter into a union building agreement comprised of the following events:

1.         on 28 November 2008, Mr Warren and Mr Lee had a conversation with Mr Milne which included:

(a)        Mr Milne telling Mr Warren and Mr Lee that Worley Parsons was locked into working with non-union agreements the sub-contractors had on the Project and had budgeted for the Project based on the non-union agreements and this could not now change;

(b)        Mr Warren stating to Mr Milne that the non-union agreements could be changed if the sub-contractors agreed to the change;

(c)        Mr Lee asking whether Worley Parsons was prepared to agree to the sub-contractors entering into new union collective agreements with the AMWU, the AWU and the CEPU; and

(d)        Mr Milne responding to (c) by stating that Worley Parsons would not agree to the sub-contractors having to do new agreements with the AMWU, the AWU and the CEPU as a party or parties.

2.         prior to and on 29 and 30 November 2008, Mr Warren and Mr Lee organised a protest at the gate of the Site on 29 and 30 November 2008 which included:

(a)        persons standing at the front gate of the Site and holding discussions with some of the workers as they entered the Site; and

(b)        a caravan and temporary camp near the front of the Site with Mr Lee attending the camp on 29 November 2008.

3.         prior to and on 2 December 2008, Mr Warren, Mr Lee and Mr Mooney organised a protest at the gate of the Site on 2 December 2008 which included:

(a)        approximately 20 persons (including Mr Warren, Mr Lee and Mr Mooney) standing near the roadway to the front gate of the Site;

(b)        the protesters at the gate (including Mr Warren, Mr Lee and Mr Mooney), yelling to employees of the sub-contractors who entered the Site in a vehicle convoy through the main gate of the Site, such yelling including comments such as “How could you guys be doing this with a non-union agreement?”;

(c)        Mr Lee telling a worker in a vehicle that had stopped “You shouldn’t be crossing this [protest line]”; and

(d)        one or more of the protesters placing a lock on the main gate to the Site to prevent the entry of workers to the Site.  (Mr Warren, Mr Lee and Mr Mooney did not place the lock on the main gate of the Site and did not direct that the lock be placed there).

4.         further, on 2 December 2008, whilst Mr Lee was on the protest, he had a conversation with Mr Milne which included:

(a)        Mr Milne stating to Mr Lee that the employees of the sub-contractors were “happy with their wage rates, why don’t you leave them alone?” and

(b)        Mr Lee responding by stating words to the effect “we have to do what we have to do.  You can’t expect us not to”.

5.         prior to and on 3 December 2008, Mr Warren and Mr Lee organised a protest of the Site on 3 December 2008 which included:

(a)        Mr Warren, Mr Lee and six other persons attending the protest; and

(b)        the lock on the main gate to the Site being glued together by one or more of the protesters (but not Mr Warren or Mr Lee) so as to prevent workers attending the Site.  (Neither Mr Warren nor Mr Lee directed that the lock be glued).

6.         prior to and from 5 December 2008 until 17 December 2008, Mr Warren and Mr Lee organised a protest of the Site between 5 and 17 December 2008 which included:

(a)        between 5 and 17 December 2008, a union camp near the front of the Site;

(b)        on 5 December 2008, there were approximately 18 persons on the protest located at the front gate of the Site and the lock on the front gate of the Site had been jammed with a stick to prevent it being opened.  (Neither Mr Warren nor Mr Lee jammed the lock or directed that the lock be jammed);

(c)        on 6 December 2008, there were four persons on the protest, including Mr Lee, and the lock on the front gate of the Site had been jammed with a stick to prevent it being opened.  (Neither Mr Warren nor Mr Lee jammed the lock or directed that the lock be jammed);

(d)        on 7 December 2008, there were three persons on the protest at the front gate of the Site and the lock on the front gate of the Site had been jammed with a stick to prevent it being opened.  (Neither Mr Warren nor Mr Lee jammed the lock or directed that the lock be jammed);

(e)        on 8 December 2008, there were 13 persons at the front gate of the Site including Mr Lee.  A log was placed on the driveway of the Site to block vehicles wishing to enter the Site, workers were heckled and stones were thrown at these workers.  In addition:

(i)         a security mirror on the Site was removed;

(ii)        the electric fence along the driveway of the Site was pulled out and pushed over;

(iii)       tyres of vehicles associated with the Site were slashed;

(iv)              the lock on the security hut associated with the Site was jammed with a stick to prevent it being opened;

(v)                speed restriction signs in the vicinity of the Site were pulled out; and

(vi)              a lock was placed on the front gate of the Site to prevent the entry of persons to the Site.

(Neither Mr Warren nor Mr Lee did or directed any protester to do any of the things identified in paragraphs (i) to (vi)).

(f)         on 9 December 2008, there were approximately 11 persons at the front gate of the Site.  Police assistance was required to remove persons from the road in order that vehicles could gain access to the Site.  Mr Warren was at the union camp;

(g)        on 10 December 2008, there were approximately 12 persons at the front gate of the Site and that afternoon, Mr Warren and Mr Lee were at the protest; 

(h)        on 11 December 2008, Mr Lee and approximately two other persons were at the front gate of the Site.  Mr Warren was at the union camp;

(i)         on 12 December 2008, there were approximately 12 persons at the front gate of the Site; 

(j)         on 13 December 2008, there were a number of protesters at the Site.  Mr Lee was at the union camp;

(k)        on 14 December 2008, there were a number of protesters at the Site.  Mr Lee was at the union camp;

(l)         on 15 December 2008, there were 14 protesters at the front gate of the Site.  A protester blocked the road to the main gate to the Site.  Protesters hit the external mirrors of the workers’ vehicles as workers drove through the front gate of the Site.  Mr Lee was at the union camp.  (Neither Mr Warren nor Mr Lee hit the external mirrors of the workers’ vehicles as workers or directed anyone to do so); and

(m)       on 17 December 2008, there were a number of protesters at the front gate of the Site including Mr Lee.  In the afternoon, a lock was placed on the front gate of the Site by one or more the protesters preventing workers from leaving the Site, the lock having to be broken by bolt cutters.  (Neither Mr Warren nor Mr Lee placed the lock on the front gate or directed anyone to do so).  Protesters also stood behind the front gate of the Site to prevent workers exiting the Site.

7.         prior to and on 18 December 2008, Mr Warren and Mr Lee organised a protest of the Site for 18 December 2008 which included a union camp near the front of the Site, some 30 persons on the protest at the front gate of the Site including Mr Warren and Mr Lee and protesters preventing workers entering the front gate of the Site by blocking the road to the entrance to the Site;

8.         prior to and on 6 January 2009, Mr Mooney assisted in the organisation of a protest of the Site on 6 January 2009 which included some 40 to 50 protesters (not including Mr Mooney) attending the protest at the Site with the majority of the protesters attending the protest by a bus provided by Latrobe Valley Bus Lines which had been booked at the direction of Mr Mooney.  Attempts were made to obstruct workers from attending the Site and those workers were verbally heckled; and

9.         prior to and on 27 March 2009, Mr Lee and Mr Mooney organised a protest of the Site on 27 March 2009 which included some 30 to 40 protesters (including Mr Mooney) attending the protest at the Site with the majority of the protesters (including Mr Mooney) attending the protest by a bus provided by Latrobe Valley Bus Lines which had been booked at the direction of Mr Mooney.  Protesters stood at the side of the entrance to the Site, heckled workers who entered the Site in convoys of ten vehicles at a time and took photographs of the workers entering the Site.

7                     As noted earlier, each of the respondents admitted contravening s 44(1) of the BCII Act.  Further, the Applicant and the respondents jointly submitted that in all the circumstances the following monetary penalties for each contravention of s 44(1) of the BCII Act should be imposed:

RELEVANT LEGISLATION

8                     The respondents admitted their conduct was unlawful under s 44 of the BCII Act and was conduct with the intent to “coerce” the sub-contractors working at the Site to agree to enter into buildings agreements under Pt 8 of the WR Act (now repealed). 

9                     Section 44(1) of the BCII Act (as it was at the time of the relevant events) provided as follows:

(1)        A person must not:

(a)        take or threaten to take any action; or

(b)        refrain or threaten to refrain from taking any action;

with intent to coerce another person, or with intent to apply undue pressure to another person, to agree, or not to agree:

(c)        to make, vary or terminate, or extend the nominal expiry date of, a building agreement under Part 8 of the [WR Act]; or

(d)        to approve any of the things mentioned in paragraph (c).

10                  As Jessup J noted in Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2010] FCA 754 at [152]:

There is no definition of “coerce” in the BCII Act, but the authorities establish at least that coercion involves the application of pressure calculated to negate choice on the part of the victim, where the means employed are unlawful, illegitimate or unconscionable: Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378, 388 [41].  

11                  Next, reference should be made to s 69 of the BCII Act under which liability for the conduct of members of an association may, in certain circumstances, be attributed to the association itself.  Sections 69(1) and (3) of the BCII Act provide as follows:

(1)        For the purposes of this Act, the following conduct in relation to a building association is taken to be conduct of the building association:

…

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

…

(d)        conduct of a member of the association, who performs the function of dealing with an employer on behalf of the member and other members of the association, acting in that capacity.

…

(3)        In this section:

officer, in relation to a building association, includes:

(a)        a delegate or other representative of the association; and

(b)        an employee of the association.

12                  Finally, reference should also be made to s 826(2) of the WR Act which provides that:

Any conduct engaged in on behalf of a body corporate by:

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

(b)        any other person at the direction or with the consent or agreement (whether express or implied) of an officer, director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the officer, director, employee or agent;

shall be taken, for the purposes of this Act or the BCII Act (as the case requires), to have been engaged in also by the body corporate.

COURT’S APPROACH TO AGREED SUBMISSION AS TO QUANTUM OF PENALTY

13                  The principles to be applied by a Court in dealing with a settlement and an agreed submission as to the quantum of a civil penalty were summarised in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR ¶41-993 at [51] and [53] in the following terms:

51         …

(i)         It is the responsibility of the Court to determine the appropriate penalty to be imposed under s 76 of the TP Act in respect of a contravention of the TP Act.

(ii)        Determining the quantum of a penalty is not an exact science.  Within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another.

(iii)               There is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy.  Accordingly, when the regulator and contravenor have reached agreement, they may present to the Court a statement of facts and opinions as to the effect of those facts, together with joint submissions as to the appropriate penalty to be imposed.

(iv)       The view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty.  In particular, the views of the regulator on matters within its expertise (such as the ACCC’s views as to the deterrent effect of a proposed penalty in a given market) will usually be given greater weight than its views on more “subjective” matters.

(iv)              In determining whether the proposed penalty is appropriate, the Court examines all the circumstances of the case.  Where the parties have put forward an agreed statement of facts, the Court may act on that statement if it is appropriate to do so.

(vi)       Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement.  The question is whether that figure is, in the Court’s view, appropriate in the circumstances of the case.  In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure.  It will be appropriate if within the permissible range.

…

53         … [T]he rationale for giving weight to a joint submission on penalty is said by the Court to be the savings in resources for the regulator and the Court, as well as the likelihood that a negotiated resolution will include measures designed to promote competition.  As Jeremy Thorpe points out, a related advantage is that the savings in resources can be used by the regulator to increase the likelihood that other contraveners will be detected and brought before the courts.  This has the effect of increasing deterrence which is one of the principal justifications, if not the only justification for imposing civil penalties under the TP Act or the Sites Act: J Thorpe, “Determining the Appropriate Role for Charge Bargaining in Part IV of the Trade Practices Act” (1996) 4 Comp & Cons LJ 69, at 72-74.  Of course the arguments in favour of negotiated settlements have to take account of the fact that it is the Court that bears the ultimate responsibility for determining the appropriate penalty.

(emphasis added).

APPLICABLE PRINCIPLES FOR THE IMPOSITION OF CIVIL PENALTY FOR CONTRAVENTION OF S 44(1) OF THE BCII ACT

14                  In considering whether the penalties proposed by the parties were within the permissible range, the general framework of the considerations set out by Tracey J in Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61 at [40] is instructive:

In my view, potentially relevant and applicable considerations for determining the appropriate penalty for a contravention of the BCII Act include:

•           The nature and extent of the conduct which led to the breaches.

•           The circumstances in which that relevant conduct took place.

•           The nature and extent of any loss or damage sustained as a result of the breaches.

•           Whether there had been similar previous conduct by the respondent.

•           Whether the breaches were properly distinct or arose out of the one course of conduct.

•           The size of the business enterprise involved.

•           Whether or not the breaches were deliberate.

•           Whether senior management was involved in the breaches.

•           Whether the party committing the breach had exhibited contrition.

•           Whether the party committing the breach had taken corrective action.

•           Whether the party committing the breach had cooperated with the enforcement authorities.

•           The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements.

•           The need for specific and general deterrence.

15                  I will deal with the CFMEU Respondents and then the non-CFMEU Respondents.

CFMEU AND MR PARKER

16                  Mr Parker’s conduct occurred on 12 February 2009: see [4] above.  The offending conduct was deliberate and involved a threat that was serious in nature – a threat to shut down the Project.  However, the threat was never carried out. 

17                  The CFMEU Respondents submitted that the contravening conversation on 12 February 2009 occurred when Mr Parker was lawfully outside the Site and in circumstances where he had not arranged to meet Mr Cooney and did not initiate the conversation.  Further, the CFMEU Respondents submitted that the offending words were used by Mr Parker in the context of a conversation characterised by differences of opinion about the appropriate form of agreements to be used on the Site and that this conversation followed legitimate attempts by Mr Parker to negotiate agreements at the Site.  This final submission was said to be supported by the facts set out in paragraphs 12 and 13 of the Statement of Agreed Facts: see [4(1) and (2) above)].  I accept that the events of 3 December 2008 and 22 January 2009 are relevant: see [4(1) and (2) above)].  I do not accept that those agreed facts provide any basis on which to find that the offending conversation occurred:

1.                  when Mr Parker was lawfully outside the Site;

2.                  in circumstances where he had not arranged to meet Mr Cooney and did not initiate the conversation;

3.                  in the context of a conversation characterised by differences of opinion about the appropriate form of agreements to be used on the Site; and

4.                  following legitimate attempts by Mr Parker to negotiate agreements at the Site. 

18                  Mr Parker’s conduct was not done with the knowledge of more senior levels of the union respondents.  Moreover, the conduct did not result in any significant financial loss to Worley Parsons or any of the sub-contractors and, further, did not cause any of the sub-contractors to actually make union agreements. 

19                  I accept that since the commencement of the proceeding, the CFMEU respondents have cooperated with the Applicant and, as a result, a great deal of time and expense that would have been incurred with a contested hearing has been avoided.  I also accept that as a result, the regulator has resources available to allow it to pursue other suspected contraventions:  see Mobil Oil Australia Pty Ltd (2004) ATPR ¶41-993 at [53].

20                  On the issue of prior convictions, Mr Parker has one previous conviction for a contravention of ss 38 and 43 of the BCII Act which involved coercive conduct:  see Stuart-Mahoney 177 IR 61 in which a penalty of $8,000 (suspended) was imposed on Mr Parker and a penalty of $55,000 was imposed on the CFMEU.  The schedule of prior convictions in relation to the CFMEU is extensive and listed some 14 cases.  The CFMEU submitted that whilst it accepted that prior convictions of a similar nature are potentially relevant, it submitted that only the last four concerned contraventions of the BCII Act and none of those involved a contravention of s 44 of the BCII Act.  Finally, the CFMEU submitted that notwithstanding the prior convictions that may be deemed to be relevant, those prior convictions cannot lead to the imposition of a penalty that was disproportionate to the gravity of the offences in issue:  Veen v R (No 2) (1988) 164 CLR 465 at 477-478.

21                  That brings me to the issue of deterrence.  The parties accept that specific and general deterrence are relevant considerations.  The CFMEU Respondents submitted that general deterrence could be achieved by means other than the imposition of a penalty such as the making of declarations.  Further, the CFMEU Respondents submitted that there was significant deterrence in the Applicant bringing the proceeding itself, citing Ponzio v B & P Caelli Constructions Pty Ltd & Others (2006) 157 IR 80 at [25], [31], [34] and [35]; Ponzio v B & P Caelli Constructions Pty Ltd & Others (2007) 158 FCR 543 at [138] and [164] per Jessup J; Pine v Expoconti Pty Ltd (2005) 147 IR 426 at [15] – [16] per Kenny J; Pine v Casello Constructions Pty Ltd [2005] FCA 1854 at [9] per North J; Ponzio v D and E Air Conditioning Pty Ltd [2005] FCA 964 at [20], [29] and [30] per North J; Furlong v Maxim Electrical Services (Aust) Pty Ltd (No 3) [2006] FCA 1705 at [20] per Marshall J.  Those submissions suffer from at least two problems – they are broad propositions devoid of content and no attempt was made to seek to apply the propositions to the circumstances of this case involving the CFMEU Respondents.  In the present case, I do not accept that the issue of deterrence (specific and general) is achieved without the imposition of a penalty.  Finally, I accept that the penalty agreed between the parties to be imposed on the CFMEU ($9,000) and Mr Parker ($3,500) is within the permissible range.  I say permissible range because I consider that the agreed penalties are at the lower end of that permissible range.

22                  One final matter must be addressed for the CFMEU Respondents – the form of Order.  The CFMEU Respondents submitted it was sufficient to refer to the section of the BCII Act that was contravened without identifying the contravening conduct.  In the circumstances of this case, I reject the CFMEU Respondents’ submission.  The Orders should accurately reflect the outcome of the proceedings.  The inclusion of the contravening conduct sets out clearly the foundation on which the penalty is grounded:  see, by way of example, Cruse v Multiplex Ltd (2008) 172 FCR 279 at [59].

NON CFMEU RESPONDENTS

23                  The non-CFMEU Respondents’ conduct occurred from 28 November 2008 until 27 March 2009 on a total of some 19 days: see [5] and [6] above.  The offending conduct was again deliberate and each of the non-CFMEU Respondents, at various times, organised and / or attended protests or pickets at the Site.  Mr Warren was involved in the organisation of protests on 17 days.  Mr Lee was involved in the organisation of protests on 18 days and Mr Mooney was involved in the organisation of protests on three days. 

24                  The conduct was serious in nature and at certain times involved interference or damage to property and interference with the employees’ ability to enter or exit the Site.  The CEPU and Mr Mooney did not file any submissions as to penalty.  The other non-CFMEU Respondents (the AMWU, the AWU, Mr Warren and Mr Lee) did file an outline of submissions in which they accepted that the conduct of the protesters was at various times entirely unsatisfactory but submitted that:

1.                  they reached agreement with the Applicant on the Statement of Agreed Facts and made admissions at an early stage of the proceeding for which they deserve credit because contested proceedings have been avoided.  In doing so, the burden on public resources involved in the time, effort and expense of a trial have been avoided;

2.                  the contravening conduct had limited impact.  The protests caused limited delays on the Site, did not ultimately prevent any persons entering or leaving the site, did not result in significant financial loss to Worley-Parsons or any of the sub-contractors and were not effective in causing the sub-contractors to make Union Agreements;

3.                  in respect of the interference with locks and placing of locks on the gate of the Site, that conduct was not engaged in or directed by Mr Warren or Mr Lee;

4.                  in respect of the property damage, that conduct was not engaged in or directed by Mr Warren or Mr Lee;

5.                  at no stage did Mr Warren have express authority from the AMWU to engage in any unlawful behaviour whilst involved in any protest at the Site; and

6.                  at no stage did Mr Lee have express authority from the AWU to engage in any unlawful behaviour whilst involved in any protest at the Site.

25                  I accept that neither the conduct of Mr Warren nor Mr Lee was done with the knowledge of more senior levels of the union respondents, the conduct did not result in any significant financial loss to Worley Parsons or any of the sub-contractors and, further, did not cause any of the sub-contractors to actually make union agreements.  The conduct did cause some delays on the Project but it did not ultimately prevent any person from entering or leaving the Project.

26                  I also accept that since the commencement of the proceeding, the non-CFMEU Respondents have cooperated with the Applicant and, as a result, a great deal of time and expense that would have been incurred with a contested hearing has been avoided.  I also accept that as a result, the regulator has resources available to allow it to pursue other suspected contraventions:  see Mobil Oil Australia Pty Ltd (2004) ATPR ¶41-993 at [53].

27                  On the issue of prior convictions, the AMWU has two previous convictions for a contravention involving coercive conduct.  That conduct occurred in 2003 and did not involve the BCII Act.  The AWU has no prior convictions.  Mr Warren and Mr Lee have no prior convictions.  The CEPU has one prior conviction for a contravention involving coercive conduct for which a penalty of $13,000 was imposed and a penalty of $2,400 was imposed on Mr Mooney. 

28                  That again brings me to the issue of deterrence.  The parties accept that specific and general deterrence are relevant considerations.  In the present case they are relevant.  In the case of those respondents not previously convicted of coercive conduct deterrence has a different significance to that of the AMWU which has two prior convictions for coercive conduct, even when those convictions are now a few years old.

29                  In the circumstances, I accept that each of the penalties agreed between the parties to be imposed on the non-CFMEU Respondents and set out below is within the permissible range:

30                  I say permissible range because I again consider that these agreed penalties are at the lower end of that permissible range.

Associate:

Dated:         4 August 2010