FEDERAL COURT OF AUSTRALIA

White v Construction Forestry Mining and Energy Union [2011] FCA 192

THE COURT ORDERS THAT:

1.    In this Order:

(a)    ‘16 May 2008 Industrial Action’ means the industrial action by the Abigroup employees, who were members of the CFMEU identified in sub-paragraph 2(a) below:

(b)    ‘Abigroup’ means Abigroup Contractors Pty Ltd;

(c)    ‘Auburn’ means the Auburn Road compound on the Monash Project;

(d)    ‘Barrabool’ means the Barrabool Road compound on Geelong 3;

(e)    ‘BCII Act’ means the Building and Construction Industry Improvement Act 2005 (Cth);

(f)    ‘CFMEU’ means the First Respondent;

(g)    ‘De Goldis’ means the De Goldis Road compound on Geelong 3;

(h)    ‘Geelong 1’ means that part of the Geelong Project at the northern end of the Geelong Ring Road which is based at the compound at the corner of Plantation and Matthews Road, Corio;

(i)    ‘Geelong 3’ means that part of the Geelong Project at the Southern end of the Geelong Ring Road between Hamilton Highway and Princes Highway;

(j)    ‘Geelong Project’ means the project to construct the Geelong Ring Road;

(k)    ‘Glenferrie’ means the Glenferrie Road compound on the Southern Link Project;

(l)    ‘High Street’ means the High Street compound on the Monash Project;

(m)    ‘Loys Paddock’ means the Loys Paddock compound on the Southern Link Project;

(n)    ‘Monash Project’ means the project to upgrade the Monash Freeway between Toorak Road and Eastlink;

(o)    ‘Pigdon’ means Pigdon Road compound on Geelong 3;

(p)    ‘Redundant Employees’ means the Abigroup Employees whose position on Geelong 1 became redundant; and

(q)    ‘Southern Link Project’ means the project to upgrade the Monash Freeway between the tunnels and Toorak Road.

2.    A penalty of $105,000 be imposed upon the first respondent for:

(a)    contravening s 38 of BCII Act on 16 May 2008 by engaging in unlawful industrial action, in that its members who were employees of Abigroup engaged in unlawful industrial action for one day at:

        (i)    Geelong 1;

        (ii)    Glenferrie; and

(iii)    Loys Paddock.

(b)    contravening s 43 of the BCII Act on 16 and 28 May 2008 by organising or taking action with intent to coerce Abigroup to:

(i)    employ the Redundant Employees to perform building work on the Southern Link Project or the Monash Project

(ii)    allocate particular responsibilities to the Redundant Employees, being responsibilities as employees on the Southern Link Project or the Monash Project.

3.    A penalty of $13,000 be imposed upon the second respondent for:

(a)    contravening s 38 of BCII Act on 16 May 2008, by reason of his being involved in the 16 May 2008 Industrial Action; and

(b)    contravening s 43 of the BCII Act on 16 and 28 May 2008 by organising or taking action with intent to coerce Abigroup to:

(i)    employ the Redundant Employees to perform building work on the Southern Link Project or the Monash Project;

(ii)    allocate particular responsibilities to the Redundant Employees, being responsibilities as employees on the Southern Link Project or the Monash Project.

4.    A penalty of $5,000 be imposed upon the third respondent for:

(a)    contravening s 38 of BCII Act on 28 May 2008 by engaging in unlawful industrial action at Pigdon for about 4 hours; and

(b)    contravening s 43 of the BCII Act on 28 May 2008 by organising or taking action with intent to coerce Abigroup to:

(i)    employ the Redundant Employees to perform building work on the Southern Link Project or the Monash Project;

(ii)    allocate particular responsibilities to the Redundant Employees, being responsibilities as employees on the Southern Link Project or the Monash Project.

5.    A penalty of $8,000 be imposed upon the fourth respondent for:

(a)    contravening s 38 of BCII Act on 16 May 2008, by reason of his being involved in the 16 May 2008 Industrial Action at Geelong 1; and

(b)    contravening s 43 of the BCII Act on 16 and 28 May 2008 by organising or taking action with intent to coerce Abigroup to:

(i)    employ the Redundant Employees to perform building work on the Southern Link Project or the Monash Project;

(ii)    allocate particular responsibilities to the Redundant Employees, being responsibilities as employees on the Southern Link Project or the Monash Project.

6.    A penalty of $5,000 be imposed upon the fifth respondent for:

(a)    contravening s 38 of BCII Act on 28 May 2008, by engaging in unlawful industrial action at Glenferrie for about 4 hours; and

(b)    contravening s 43 of the BCII Act on 28 May 2008 by organising or taking action with intent to coerce Abigroup to:

(i)    employ the Redundant Employees to perform building work on the Southern Link Project or the Monash Project;

(ii)    allocate particular responsibilities to the Redundant Employees, being responsibilities as employees on the Southern Link Project or the Monash Project.

7.    A penalty of $5,000 be imposed upon the sixth respondent for:

(a)    contravening s 38 of BCII Act on 28 May 2008, by engaging in unlawful industrial action at DeGoldis for about 4 hours; and

(b)    contravening s 43 of the BCII Act on 28 May 2008 by organising or taking action with intent to coerce Abigroup to:

(i)    employ the Redundant Employees to perform building work on the Southern Link Project or the Monash Project;

(ii)    allocate particular responsibilities to the Redundant Employees, being responsibilities as employees on the Southern Link Project or the Monash Project.

8.    A penalty of $11,000 be imposed upon the seventh respondent for:

(a)    contravening s 38 of BCII Act on 16 May 2008, by reason of his being involved in the 16 May 2008 Industrial Action at Glenferrie and Loys Paddock; and

(b)    contravening s 43 of the BCII Act on 16 and 28 May 2008 by organising or taking action with intent to coerce Abigroup to:

(i)    employ the Redundant Employees to perform building work on the Southern Link Project or the Monash Project;

(ii)    allocate particular responsibilities to the Redundant Employees, being responsibilities as employees on the Southern Link Project or the Monash Project.

9.    A penalty of $5,000 be imposed upon the eighth respondent for:

(a)    contravening s 38 of BCII Act on 28 May 2008, by engaging in unlawful industrial action at Geelong 1 for about 4 hours; and

(b)    contravening s 43 of the BCII Act on 28 May 2008 by organising or taking action with intent to coerce Abigroup to:

(i)    employ the Redundant Employees to perform building work on the Southern Link Project or the Monash Project;

(ii)    allocate particular responsibilities to the Redundant Employees, being responsibilities as employees on the Southern Link Project or the Monash Project.

10.    A penalty of $5,000 be imposed upon the ninth respondent for:

(a)    contravening s 38 of BCII Act on 28 May 2008, by engaging in unlawful industrial action at High Street for about 4 hours; and

(b)    contravening s 43 of the BCII Act on 28 May 2008 by organising or taking action with intent to coerce Abigroup to:

(i)    employ the Redundant Employees to perform building work on the Southern Link Project or the Monash Project;

(ii)    allocate particular responsibilities to the Redundant Employees, being responsibilities as employees on the Southern Link Project or the Monash Project.

11.    A penalty of $8,000 be imposed upon the tenth respondent for:

(a)    contravening s 38 of BCII Act on 16 May 2008 by reason of his being involved in the 16 May 2008 Industrial Action at Glenferrie and Loys Paddock; and

(b)    contravening s 43 of the BCII Act on 16 and 28 May 2008 by organising or taking action with intent to coerce Abigroup to:

(i)    employ the Redundant Employees to perform building work on the Southern Link Project or the Monash Project;

(ii)    allocate particular responsibilities to the Redundant Employees, being responsibilities as employees on the Southern Link Project or the Monash Project

12.    Each of the penalties imposed upon the respondents in paragraphs 2 to 11 above be paid into the Consolidated Revenue Fund on or before 7 April 2011.

13.    The application otherwise be dismissed.

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

1    The applicant seeks orders imposing pecuniary penalties on the first respondent, the Construction, Forestry, Mining and Energy Union (‘CFMEU’) and the second to tenth respondents, who are CFMEU employees, organisers and/or members, for contraventions of ss 38 and 43 of the Building and Construction Industry Improvement Act 2005 (Cth) (‘the BCII Act’). The applicant is an Australian Building and Construction Inspector appointed under s 57 of the BCII Act and is entitled to bring this proceeding.

2    By the applicant’s statement of claim dated 23 September 2009, the applicant alleged that the respondents had breached ss 38 and 43 of the BCII Act by conduct on 16 and 28 May 2008 at freeway construction projects at which Abigroup Contractors Pty Ltd (‘Abigroup’) was engaged. These projects were the Geelong Project, the Southern Link project and the Monash Project (together the ‘Sites’). The parties referred to two relevant parts of the Geelong Project as Geelong 1 and Geelong 3. The parties also referred to a number of “compounds” that were used as bases for employees. In order to understand what follows, it is necessary to identify these compounds. For the Geelong Project:

(a)    on Geelong 1, the corner of Plantation and Mathews Roads in Corio;

(b)    on Geelong 3: (1) Barrabool; (2) Pigdon; (3) De Goldis.

For the Southern Link Project: (1) Loys Paddock; and (2) Glenferrie. For the Monash Project: (1) High Street; and (2) Auburn Road.

3    The matter was listed for trial on 28 February 2011. On 11 February 2011, the respondents filed a statement of agreed facts between them and the applicant in which the respondents admitted the following contraventions of ss 38 and 43 of the BCII Act by conduct on 16 and 28 May at the Sites (and agreed the following penalties):

(a)    The CFMEU admitted one contravention of s 38 of the BCII Act by conduct on 16 May 2008 and one contravention of s 43 of the BCII Act by conduct on 16 and 28 May. It agreed that the appropriate penalty for the two contraventions would be $105,000.

(b)    The second respondent, Mr Edwards, admitted one contravention of s 38 of the BCII Act by his conduct on 16 May 2008 and one contravention of s 43 of the BCII Act by his conduct on 16 and 28 May 2008. He agreed that the appropriate penalty for the two contraventions would be $13,000.

(c)    The third respondent, Mr Graauwmans, admitted one contravention of s 38 of the BCII Act by his conduct on 28 May 2008 and one contravention of s 43 of the BCII Act by his conduct on 28 May 2008. He agreed that the appropriate penalty for the two contraventions would be $5,000.

(d)    The fourth respondent, Mr Hill, admitted one contravention of s 38 of the BCII Act by his conduct on 16 May 2008 and one contravention of s 43 of the BCII Act by his conduct on 16 and 28 May 2008. He agreed that the appropriate penalty for the two contraventions would be $8,000.

(e)    The fifth respondent, Mr Long, admitted one contravention of s 38 of the BCII Act by his conduct on 28 May 2008 and one contravention of s 43 of the BCII Act by his conduct on 28 May 2008. He agreed that the appropriate penalty for the two contraventions would be $5,000.

(f)    The sixth respondent, Mr Murphy, admitted one contravention of s 38 of the BCII Act by his conduct on 28 May 2008 and one contravention of s 43 of the BCII Act by his conduct on 28 May 2008. He agreed that the appropriate penalty for the two contraventions would be $5,000.

(g)    The seventh respondent, Mr Powell, admitted one contravention of s 38 of the BCII Act by his conduct on 16 May 2008 and one contravention of s 43 of the BCII Act by his conduct on 16 and 28 May 2008. He agreed that the appropriate penalty for the two contraventions would be $11,000.

(h)    The eighth respondent, Mr Reardon, admitted one contravention of s 38 of the BCII Act by his conduct on 28 May 2008 and one contravention of s 43 of the BCII Act by his conduct on 28 May 2008. He agreed that the appropriate penalty for the two contraventions would be $5,000.

(i)    The ninth respondent, Mr Stephenson, admitted one contravention of s 38 of the BCII Act by his conduct on 28 May 2008 and one contravention of s 43 of the BCII Act by his conduct on 28 May 2008. He agreed that the appropriate penalty for the two contraventions would be $5,000.

(j)    The tenth respondent, Mr Tadic, admitted one contravention of s 38 of the BCII Act by his conduct on 16 May 2008 and one contravention of s 43 of the BCII Act by his conduct on 16 and 28 May 2008. He agreed that the appropriate penalty for the two contraventions would be $8,000.

4    The applicant and the respondents agreed that, in accordance with s 49(2) of the BCII Act, the maximum penalty for each contravention of ss 38 and 43 of the BCII Act is $110,000 for the CFMEU and $22,000 for the individual respondents. The parties also agreed that the agreed penalties for the admitted contraventions are within the permissible range for each contravention. Notwithstanding their agreement on this last-mentioned matter, the assessment of what, if any, penalties should be imposed on the respondents is ultimately for the Court to determine. The parties addressed this matter this morning and in written submissions filed before today’s hearing.

5    The parties agreed, and I accept, that the proper approach of the Court in respect of an agreed submission as to the quantum of the penalty is that described in Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 (‘Mobil’). In summary in Mobil the Full Court (constituted by Branson, Sackville and Gyles JJ) said (at [51]):

(a)    it is the responsibility of the Court to determine the appropriate penalty;

(b)    determining the amount of penalty is not an exact science;

(c)    within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another;

(d)    there is public interest in promoting settlement of litigation, particularly where it is likely to be lengthy;

(e)    the view of the regulator, as a specialist body, is a relevant, but not determinative, consideration;

(f)    in determining whether the proposed penalty is appropriate, the Court examines all of the circumstances of the case; and

(g)    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, in the Court’s view, is 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 it is within the permissible range.

6    Courts exercising a jurisdiction of the present kind have identified a range of factors that may be relevant in assessing the appropriate penalty in the circumstances of the particular case. However, as Buchanan J noted in Australian Opthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at 580, “[a]t the end of the day the task of the Court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations”.

7    In conformity with the authorities, the parties agreed that the following considerations may be relevant to the assessment of penalties in this case: the nature and extent of the contravening conduct; the circumstances in which the conduct took place; the period of the conduct; the nature and extent of any loss or damage sustained as a result of the conduct; whether there has been similar previous conduct by the respondent; whether the contraventions were distinct or arose out of the one course of conduct; whether senior management was involved in the conduct; whether there had been any contrition exhibited; the cooperation of the respondent; and the need for general and specific deterrence. In so far as the parties referred to additional or different factors, I observe that no such list is prescriptive or exhaustive. In the circumstances of the present case, generally speaking, these additional factors might be subsumed within the list of agreed considerations. Ultimately, the assessment of appropriate penalties is, as I have said, a matter for the Court’s discretion, which is to be exercised judicially and in accordance with received principles.

8    It should be borne in mind that the main object of the BCII 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 participants and for the benefit of the Australian economy as a whole: see BCII, s 3(1). The BCII aims to achieve that object by the means set out in s 3(2).

9    The principles that should inform the Court’s exercise of discretion are generally well-established: see generally CFMEU v Williams (2009) 262 ALR 417 at 428; Stuart v CFMEU (2010) 185 FCR 308 at 321; CFMEU v Cahill (2010) 194 IR 461; and Australian Building & Construction Commissioner v CFMEU (No 2) [2010] FCA 977 at [3]-[17]. The parties referred me to them in their written submissions. It is unnecessary to restate them here.

10    Although the Court is not obliged to assess the appropriate penalties by reference to a ‘check list’, I have found it convenient to set out my consideration of the matter by reference to the general factors upon which the parties were agreed.

The nature of the contravening conduct; the circumstances in which the conduct took place; the period of the conduct

11    The nature of the contravening conduct and the circumstances in which it took place are apparent from the statement of agreed facts. The following account is derived from that statement.

12    Abigroup is a building employer that was engaged in building work at the Sites. Abigroup employed employees to work at the Sites pursuant to terms and conditions that included the Southern Region Agreement and the Abigroup Agreement (‘the industrial instruments’). In or about early May 2008, Abigroup decided that the positions of about 13 of its employees who had been engaged to work on the Geelong Project would be made redundant (‘the redundant employees’). At all relevant times during and prior to 2008 it was the CFMEU’s understanding that Abigroup’s custom and practice was, in circumstances such as those that arose and where possible, to transfer its redundant employees to another site rather than make them redundant. On 2 May 2008, after Abigroup made the decision to make the 13 positions redundant, Mr Edwards of the CFMEU spoke with Mr Chambers, Civil Division Manager, Southern Region of Abigroup, and asked if there was an opportunity to secure alternative work for the redundant employees. Mr Chambers made no response to Mr Edwards’ enquiry.

13    On 14 and 15 May 2008 Abigroup foremen on the Geelong Project communicated to each of the redundant employees that their positions were to be made redundant.

14    On 15 May 2008, the CFMEU notified the Victorian Building Industry Disputes Panel (‘VBIDP’) of the existence of an alleged dispute between the CFMEU and Abigroup relating to work being carried out at the Geelong Project and the redundant employees.

15    The industrial instruments are agreements between Abigroup and the CFMEU. They contain provisions for the resolution of disputes. Clause 10.2(c) and (f) and clause 10.4 of the Abigroup Agreement stated:

1.2    In the event of any work related grievance arising between [Abigroup] and an employee or employees, the matter shall be dealt with in the following manner:

…

c    Work shall continue without interruption while these procedures are being followed. The pre-dispute status quo shall prevail while the matter is being dealt with in accordance with this procedure.

…

f    Should the matter remain unresolved either of the parties or their representatives may refer the dispute with the agreement of both parties at first instance to the Victorian Building Industry Disputes Panel (which shall deal with the dispute in accordance with the Panel Charter).

…

10.4    If any party fails or refuses to follow any step of this procedure the non-breaching party will not be obligated to continue through the remaining steps of the procedure, and may immediately seek relief by application to the AIRC.

16    I have set these provisions out in this way because, although the parties agreed at the hearing this morning that they were applicable in the circumstances that arose in May 2008, my attention was drawn to the fact that Abigroup and the respondents adopted different positions with respect to their operation. This is not an occasion to resolve these differences. I have noted the different approaches below, because they assist in understanding to some extent the conduct of the respondents and of Abigroup.

17    On the same day that the CFMEU notified the VBIDP of the dispute, CFMEU representatives (Messrs Hill and Powell) met with representatives of Abigroup, requesting that the redundant employees be given work on the Monash Project. Mr Lellyett of Abigroup stated that the redundant employees could complete an application form applying for work on the Monash Project but that Abigroup was not prepared to transfer the redundant employees to the Monash Project.

18    On 16 May 2008 the VBIDP faxed Abigroup a notification advising that the VBIDP dispute was to be listed for a conference at 10:00 am on 21 May 2008.

19    There were further communications between Abigroup representatives (Messrs Cairns, Chambers, Toogood and Vasta) and the CFMEU representatives (Messrs Edwards, Hill, Powell and Tadic) on 16 May 2008; and Abigroup Southern Link employees at Loys Paddock and Glenferrie voted not to work, in support of the redundant employees from the Geelong Project. On 16 May the Southern Link employees based at Glenferrie and Loys Paddock attended their compounds but failed to report for work at their usual start time of 7.00 am. The Southern Link employees based at Glenferrie left their compound at about 7.00 am for the rest of the day without having performed any work. The Southern Link employees employed at Loys Paddock left their compound at about 11.00 am without having performed any work.

20    Also on 16 May 2008, a CFMEU representative informed Mr Vasta that the Geelong 1 employees were going to be sitting in the sheds and wanted a resolution about getting the redundant employees work up in Melbourne. On that day, the Geelong 1 employees failed to report for work at their usual start time of 7.00 am. They remained in the site sheds until about 11.00 am; and, after a further meeting from about 11.00 am to about 11.30 am, left Geelong 1 for the rest of the day without having performed any work.

21    Work resumed at Geelong 1 and the Southern Link Project after 16 May 2008.

22    On 20 May 2008 Abigroup made application to the Australian Industrial Relations Commission (‘AIRC’) for orders preventing industrial action. That application was heard on 20 May 2008 by Commissioner Blair, who recommended that the parties continue their discussions and abide by the dispute resolution procedures as outlined in the appropriate EBA.

23    On 21 May 2008, Abigroup wrote to the VBIDP stating that it would not attend the conference scheduled for that day (21 May) at the VBIDP. Abigroup did not attend that conference. In its 21 May 2008 letter, Abigroup maintained that “[t]he step in the resolution procedure that refers to a matter being referred to the VBIDP has been overtaken by the events that occurred on the 16 May 2008 and the necessity to involve the AIRC as a consequence of those events’.

24    On 22 May 2008 the Chairman of the VBIDP wrote to Abigroup setting out his communication with Commissioner Blair of the AIRC and confirming the intent of Commissioner Blair’s recommendation that the disputes procedures of the EBA were to be activated and that Commissioner Blair expected the reactivation of the disputes procedure in accordance with the earlier notification by the CFMEU to the VBIDP. The Chairman relisted the VBIDP dispute for 23 May 2008.

25    Abigroup did not attend the conference of the VBIDP dispute listed before the VBIDP on 23 May 2008. On 23 May 2008 Mr Chambers explained to the VBIDP that he did not attend the conference of the VBIDP on 23 May because he had not received the notification. On 23 May the VBIDP issued a notification for a further listing of the VBIDP dispute on 27 May 2008.

26    On 26 May 2008 Abigroup wrote to the VBIDP declining the VBIDP’s “offer of assistance”. Abigroup did not attend the conference of the VBIDP dispute listed before the VBIDP on 27 May 2008.

27    On 27 May 2008 the Chairman of the VBIDP wrote to Commissioner Blair of the AIRC, recording his view that the employer party had failed to conform to the AIRC’s recommendation and stating that that “the panel remained readily available to carry out the AIRC’s direction”.

28    The second day of the industrial action occurred on 28 May 2008.

29    There were further communications between Abigroup representatives and the CFMEU representatives (Messrs Graauwmans, Hill, Long, Murphy, Powell, Reardon, Stephenson and Tadic) on 28 May 2008; and Abigroup employees at each of the Sites voted not to work, in support of the redundant employees from the Geelong Project. The industrial action lasted about 4 hours. On 28 May 2008, employees at Geelong 1 and Geelong 3 failed to report to work at their usual start time of 7.00 am and did not report for work until 11 am that day. On the same day, employees at the Southern Link Project and the Monash Project also failed to report to work at their usual start time of 7.00 am and did not report for work until around 11 am that day.

30    The details of each individual respondent’s conduct appears in the statement of agreed facts.

(a)    Mr Edwards was the most senior CFMEU officer involved in these events. He made the initial approach to Mr Chambers in early May 2008 to secure redeployment for the redundant employees. When the industrial action commenced on 16 May 2008, he contacted Mr Chambers and urged him to get Abigroup to employ the redundant employees and passed on to Mr Powell (who was at Loys Paddock) the fact that Mr Chambers was refusing to agree to do so. Later that day Mr Edwards told Mr Chambers that Abigroup had a chance to fix things, and he refused the request from Mr Chambers to call off the industrial action, saying instead that “people work better under pressure”. This was after the CFMEU had notified the VBIDP of the dispute, but before the proposed first conference at the VBIDP. Mr Edwards represented the CFMEU in the AIRC proceedings and the VBIDP proceedings. Similarly, on 28 May 2008, Mr Edwards telephoned Mr Chambers and Mr Watson, and asked them when Abigroup was going to put the redundant employees back on, whilst at the same time the other individual respondents were engaging in the conduct described hereafter.

(b)    Mr Graauwmanns engaged in industrial action at the Pigdon site on 28 May 2008. He parked his car across the gate and refused to move it when asked to do so. He conducted a meeting of employees and told them it was a CFMEU lock out and opposed Abigroup’s efforts to persuade the employees to return to work.

(c)    Mr Hill, with Mr Powell, was involved in the initial demands that Abigroup redeploy the redundant employees at the meeting on 15 May 2008. On 16 May 2008, along with Mr McKenzie, Mr Hill met with the Geelong 1 employees before they refused to attend for work and later left the site for the day. Mr Hill demanded that the redundant employees be given employment in Melbourne. On 28 May 2008, Mr Hill parked his car across the gate at Barrabool and told Abigroup managers that it was a CFMEU lock out. He refused to move his car when asked to do so by Abigroup managers. He met with the Abigroup employees at Barrabool outside the gate. The employees failed or refused to attend work until Mr Hill removed his car.

(d)    Mr Long was at the Glenferrie site on 28 May 2008, parked his car across the gate and conducted meetings with the employees and refused to allow the employees to attend work until about 10.35 am.

(e)    Mr Murphy parked his car across the gate at DeGoldis on 28 May 2008 and, along with Mr McKenzie, conducted a meeting of employees. The employees failed or refused to report for work at their usual start time and did not attend work until Mr Murphy moved his car.

(f)    Mr Powell, with Mr Hill, was involved in the initial demands that Abigroup redeploy the redundant employees at the meeting on 15 May 2008. He was at Loys Paddock on the morning of 16 May 2008 and met with the employees and told Abigroup management that Abigroup caused “this” and they had sufficient time to sort it out. He continued to demand that Abigroup redeploy the redundant employees. He kept in touch with discussions between Mr Edwards and Mr Chambers on the morning and met with the employees on a number of occasions and they continued to fail or refuse to attend work. Ultimately, absent a resolution on the day, he told Mr Cairns that, the employees were going home for the day. Mr Powell was at Loys Paddock on 28 May 2008 and parked his car across the gate and told Abigroup management that there was a picket because of Abigroup’s refusal to go to mediation and to redeploy the redundant employees. He met with the employees and they failed or refused to attend work until about 11.00 am, in accordance with what Mr Powell told Mr Cairns on the day.

(g)    Mr Reardon was at Geelong 1 on the morning of 28 May 2008 and parked his car in a position which impeded, but did not prevent, access to the gate and told Abigroup management that he was going to meet with the employees and that they were going to shut the job down. He actively opposed efforts by Abigroup management to persuade the employees to return to work. He later told Abigroup management that the employees would return to work at 11.00 am. The employees did so, after Mr Reardon left the site.

(h)    Mr Stephenson was at High Street on the morning of 28 May 2008, parked his car across the gate to the compound and told Abigroup management that there was a picket line in place and no one was to enter the site. He conducted a number of meetings with the employees over the course of the morning and eventually allowed the employees to enter the site and start work at about 11.00 am.

(i)    Mr Tadic met with the employees at Glenferrie early on the morning of 16 May 2008 and then went across to the Loys Paddock site and joined a meeting of the Glenferrie and Loys Paddock employees with Mr Powell. Along with Mr Powell, he was involved in discussions with Abigroup management over the course of the morning and met with the employees from Glenferrie and Loys Paddock on a number of occasions, after which the employees left the site for the remainder of the day. On 28 May 2008, Mr Tadic parked his car across the gate of the Auburn compound and told Abigroup management that there was a picket over the fact that the redundant employees were put off at Geelong and that they should be given a job on the Monash Project. He prevented the Auburn employees from taking their vehicles onto the site and from performing their work in Abigroup vehicles.

31    In these circumstances each of the individual respondents has admitted the contraventions of ss 38 and 43 of the BCII set out in paragraph [3] above. The CFMEU accepts that it bears responsibility for the conduct of each of the individual respondents and the relevant Abigroup employees involved in the industrial action on 16 and 28 May 2008 by operation of s 69 of the BCII Act. It admits the contraventions as set out in paragraph [3] above. The respondents accepted that for the purposes of the agreement they had reached with the applicant the total number of contraventions is that set out above.

32    The respondents accepted that, for the purposes of the agreement reached between the parties, those individual respondents who were involved in the contraventions more directly and over longer periods are to receive a proportionately greater penalty.

Relevant prior conduct

33    The principles concerning relevant prior conduct are well-known. The parties referred me to these principles in their written submissions. It is unnecessary to set them out here. The applicant provided the Court with a table identifying what was said to be the prior relevant conduct of the CFMEU, and Messrs Powell, Stephenson and Tadic. There was no prior conduct alleged against the other respondents.

34    As the respondents submitted, the prior contraventions relied on by the applicant cannot lead to the imposition of a penalty that is disproportionate to the gravity of the contraventions admitted. The parties in this case agreed that the proposed penalties were proportionate to the contraventions.

Whether the contraventions were distinct or arose out of the one course of conduct

35    The applicant also submitted, and I accept, that where a person is convicted of more than one charge, the Court may, but does not have to, have regard to common aspects of the contraventions in question. The parties set out the relevant principles. It is unnecessary to repeat them. The respondents accepted that, for the purposes of assessing penalty, the contraventions ought to be grouped in the way indicated in the statement of agreed facts. Having regard to the statement of agreed facts, I accept that this is an appropriate way to group the contraventions.

Deliberate conduct; the size of the contravener; whether senior management was involved

36    The respondents did not contend that their conduct was inadvertent. The nature of their contravening conduct was disclosed in the statement of agreed facts, as set out above. For the purposes of the agreement reached in this proceeding, the respondents did not seek any mitigation of their penalty by virtue of their size or financial position.

37    It is, however, relevant to note that the statement of agreed facts recorded that a number of the individual respondents held positions on the Branch Council and Divisional Branch Committee of Management. Mr Edwards is Divisional Branch President and a member of the Divisional Branch Management Committee, the Divisional Branch Executive Committee and the Divisional Branch Council. Mr Reardon is a Divisional Branch Vice-President and a member of the Divisional Branch Management Committee, the Divisional Branch Executive Committee and the Divisional Branch Council. Mr Stephenson is a member of the Divisional Branch Management Committee and the Divisional Branch Council. Mr Powell and Mr Tadic are each members of the Divisional Branch Council.

Contrition

38    It suffices to say that the parties agreed that the lack of contrition is not an aggravating circumstance that might increase the penalty. The respondents did not rely on contrition as a mitigating factor.

Cooperation

39    The parties agreed that the respondents have co-operated by agreeing on: (i) the agreed statement of facts; (ii) the penalties to be imposed; and (iii) to pay a contribution to the applicant’s legal costs. The parties agreed that the respondents’ co-operation obviated the need for a lengthy trial and the imposition on a number of potential witness of the requirement to attend court to give evidence. The respondents’ co-operation is a significant mitigating factor in the assessment of penalty.

Deterrence

40    Deterrence, specific and general, is to be taken into account in assessing penalty. The parties referred the Court to the relevant authorities. It is unnecessary in this case to refer to them specifically.

The nature and extent of any loss and damage sustained as a result of the conduct

41    The statement of agreed facts did not address the nature and extent of any loss and damage as a result of the respondents’ contravening conduct. It is not therefore a factor that can be given much, if any, weight.

Other matters

42    As the applicant noted in its written reply submissions given to me in court today, the written submissions of the parties disclosed that the applicant and the respondents held different views as to: whether provocation by Abigroup should be a discounting factor; the extent to which the CFMEU’s spending of time and money on the proceedings should be regarded as having already met some of the deterrence that is to be taken into account in fixing penalties. It is not, however, necessary for me to resolve these differences in this case.

43    As indicated, I have had some regard to the positions of individual respondents, where relevant: see para [36] above.

44    It is unnecessary for me to determine here whether a notion of provocation such as that adopted by Brooking J in Pearce (1983) 9 A Crim R 146 at 150 might have any part to play in assessing an industrial penalty. Rather, it suffices that, in this case, I have taken into account the whole of the circumstances disclosed in the statement of agreed facts, which include the agreed facts relied on in this connection by the respondents, as well as some agreed facts to which the applicant referred also in this connection.

Disposition

45    In all the circumstances of the case, having regard to the matters to which I have referred, accepted sentencing principles, including the level of the seriousness of the contravening conduct and deterrence, general and specific, and bearing in mind the parties’ agreement (which evidences the view of the regulatory agency), I am satisfied that the proposed penalties are within the permissible range. I would make the orders that the applicant seeks.

Associate:

Dated:    7 March 2011

SCHEDULE OF PARTIES