FEDERAL COURT OF AUSTRALIA

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCA 1014

THE COURT ORDERS THAT:

1.    On or before 6 December 2013, the Second Respondent (Stephenson) pay a penalty of $6,500 for his conduct on 31 August 2010 by engaging in:

1.1    a blockade of the entrance to the Cranbourne-Frankston Road compound site (the Cranbourne-Frankston Road site) of the project to design and build the Peninsula Link freeway (the Peninsula Link Project), thereby preventing access to and from the Cranbourne-Frankston Road site; and

1.2    a blockade of the entrance to the main Peninsula Link compound at Oliphant Way, Seaford (the Seaford Compound) of the Peninsula Link Project, thereby preventing vehicular access to and from the Seaford Compound –

such conduct being engaged in with intent to coerce Abigroup Contractors Pty Ltd (Abigroup Contractors) to employ particular members of the First Respondent (CFMEU) on the Peninsula Link Project, including four identified CFMEU members (four identified members), contrary to s 43(1)(a) of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act).

2.    On or before 6 December 2013, the Fifth Respondent (Doyle) pay a penalty of $5,000 for his conduct on 31 August 2010 by engaging in:

2.1    a blockade of the entrance to the Cranbourne-Frankston Road site of the Peninsula Link Project, thereby preventing access to and from the site; and

2.2    a blockade of the entrance to the Seaford Compound of the Peninsula Link Project, thereby preventing vehicular access to and from the Seaford Compound –

such conduct being engaged in with intent to coerce Abigroup Contractors to employ particular CFMEU members on the Peninsula Link Project, including four identified members, contrary to s 43(1)(a) of the BCII Act.

3.    On or before 6 December 2013, the CFMEU pay a penalty of $35,000 for a contravention of s 43(1)(a) of the BCII Act by reason of being vicariously liable for the conduct referred to in paragraphs 1 and 2 above.

4.    On or before 6 December 2013, the Fourth Respondent (MacDonald) pay a penalty of $2,500 for a contravention of s 38 of the BCII Act for being involved (within the meaning of s 48(2) of the BCII Act) in unlawful strike action engaged in on 27 October 2010 by employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working at the Truganina South Primary School Project Site at Federation Boulevard, Truganina (the Truganina Site), such involvement by MacDonald being constituted by him having directed those employees to strike for the day.

5.    On or before 6 December 2013, Stephenson pay a penalty of $10,000 for his conduct in directing:

5.1    on 26 October 2010, employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working on the Southern Link Upgrade Alliance Project in Victoria (SLU Project) to strike for the day;

5.2    on 27 October 2010, employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working on the Tooradin Primary School Project Site at Bayview Road, Tooradin (the Tooradin Site) to strike for the day;

5.3    on 27 October 2010, employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working on the Mt Eliza North Primary School Project Site at Moseley Drive, Mt Eliza North (the Mt Eliza Site) to strike for the day;

5.4    on 27 October 2010, employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working on the Derinya Primary School Project Site at Derinya Drive, Frankston (the Derinya Site) to strike for the day; and

5.5    on 27 October 2010, employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working on the Dromana Primary School Project Site at McCulloch Street, Dromana (the Dromana Site) to strike for the day –

such conduct being engaged in with intent to coerce Abigroup Contractors to employ particular CFMEU members on the Peninsula Link Project, including four identified members, contrary to s 43(1)(a) of the BCII Act.

6.    On or before 6 December 2013, the Third Respondent (Powell) pay a penalty of $10,000 for his conduct in directing:

6.1    on 26 October 2010, employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working on the SLU Project to strike for the day;

6.2    on 27 October 2010, employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working on the Tooradin Site to strike for the day;

6.3    on 27 October 2010, employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working on the Mt Eliza Site to strike for the day;

6.4    on 27 October 2010, employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working on the Derinya Site to strike for the day; and

6.5    on 27 October 2010, employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working on the Dromana Site to strike for the day –

such conduct being engaged in with intent to coerce Abigroup Contractors to employ particular CFMEU members on the Peninsula Link Project, including four identified members, contrary to s 43(1)(a) of the BCII Act.

7.    On or before 6 December 2013, the CFMEU pay a penalty of $55,000 for a contravention of s 43(1)(a) of the BCII Act by reason of being vicariously liable for:

7.1    the conduct of MacDonald in referred to in paragraph 4 above, such conduct being engaged in with intent to coerce Abigroup Contractors to employ particular CFMEU members on the Peninsula Link Project, including four identified members, contrary to s 43(1)(a) of the BCII Act;

7.2    the conduct of Stephenson referred to in paragraph 5 above; and

7.3    the conduct of Powell referred to in paragraph 6 above.

8.    On or before 6 December 2013, Doyle pay a penalty of $6,000 for a contravention of s 38 of the BCII Act for being involved (within the meaning of s 48(2) of the BCII Act) in unlawful strike action engaged in on 11 November 2010 by:

8.1    employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working at the Lyndhurst Primary School Project Site at 70 Brookwater Way, Lyndhurst (the Lyndhurst Site), such involvement by Doyle being constituted by him having directed those employees to strike for the day; and

8.2    employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working at the Cranbourne East Primary School Project Site at 50 Stately Drive, Cranbourne East (the Cranbourne East Site), such involvement by Doyle being constituted by him having directed those employees to strike for the day.

9.    On or before 6 December 2013, MacDonald pay a penalty of $2,500 for a contravention of s 38 of the BCII Act for being involved (within the meaning of s 48(2) of the BCII Act) in unlawful strike action engaged in on 11 November 2010 by employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working at the Truganina Site, such involvement by MacDonald being constituted by him having directed those employees to strike for the day.

10.    On or before 6 December 2013, the Sixth Respondent (Benstead) pay a penalty of $3,000 for a contravention of s 38 of the BCII Act for being involved (within the meaning of s 48(2) of the BCII Act) in unlawful strike action engaged in on 11 November 2010 by employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working at the Aitken Creek Primary School Project Site at 51-81 Grevilla Street, Craigieburn (the Aitken Site), such involvement by Benstead being constituted by him having directed those employees to strike for the day.

11.    On or before 6 December 2013, the Seventh Respondent (Parker) pay a penalty of $2,500 for a contravention of s 38 of the BCII Act for being involved (within the meaning of s 48(2) of the BCII Act) in unlawful strike action engaged in on 11 November 2010 by employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working at the Drouin South Primary School Project Site at Westernport Road, Drouin South (the Drouin Site), such involvement by Parker being constituted by him having directed those employees to strike for the day.

12.    On or before 6 December 2013, Stephenson pay a penalty of $12,500 for his conduct on 11 November 2010 in engaging with others in a verbal altercation with representatives of Abigroup Contractors (such conduct including abusive language and the taking of photographs), Stephenson’s conduct being engaged in with intent to coerce Abigroup Contractors to employ particular CFMEU members on the Peninsula Link Project, including four identified members, contrary to s 43(1)(a) of the BCII Act.

13.    On or before 6 December 2013, Powell pay a penalty of $14,500 for his conduct on 11 November 2010 in:

13.1    directing employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working on the Mt Eliza Site to strike for the day; and

13.2    engaging with others in a verbal altercation with representatives of Abigroup Contractors at the Cranbourne-Frankston Road site (such conduct including abusive language and the taking of photographs) –

Powell’s conduct being engaged in with intent to coerce Abigroup Contractors to employ particular CFMEU members on the Peninsula Link Project, including four identified members, contrary to s 43(1)(a) of the BCII Act.

14.    On or before 6 December 2013, the CFMEU pay a penalty of $65,000 for a contravention of s 43(1)(a) of the BCII Act by reason of being vicariously liable for:

14.1    the conduct of:

14.1.1.    Doyle referred to in paragraph 8 above;

14.1.2.    MacDonald referred to in paragraph 9 above;

14.1.3.    Benstead referred to in paragraph 10 above;

14.1.4.    Parker referred to in paragraph 11 above;

14.2    the conduct of Stephenson referred to in paragraph 12 above; and

14.3    the conduct of Powell referred to in paragraph 13 above –

such conduct being engaged in with intent to coerce Abigroup Contractors to employ particular CFMEU members on the Peninsula Link Project, including four identified members, contrary to s 43(1)(a) of the BCII Act.

15.    In the event that there is default in payment, the District Registrar shall apply to the Court for directions concerning enforcement.

16.    The proceeding otherwise be dismissed.

17.    There be no order as to costs.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    The Applicant, the Acting Director of the Fair Work Building Industry Inspectorate, appointed pursuant to s 16 of the Fair Work (Building Industry) Act 2012 (Cth) (the FWBI Act), is entitled to bring this proceeding seeking orders pursuant to s 49(1) of the Building and Construction Industry Improvement Act 2005 (Cth) (the BCII Act) by reason of ss 2.3(1)(b) and 2.3(3)(a) of the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Regulation 2012 (Cth).

2    The First Respondent (the CFMEU) is an association of employees registered as an organisation pursuant to s 26 of the Fair Work (Registered Organisations) Act 2009 (Cth) (the FW(RO) Act) and, at all relevant times, was both an organisation and industrial association within the meaning attributed to those terms by s 4 of the BCII Act.

3    This proceeding concerned conduct engaged in by the individual named respondents in connection with certain construction projects in which Abigroup Ltd was engaged in 2010. The Applicant seeks declarations and the imposition of civil penalties against the CFMEU and each of the individual named respondents for breaches of the BCII Act. Each of the individual named respondents was both an employee organiser of the CFMEU and an officer of the CFMEU within the meaning given to that term by ss 4 and 69(3) of the BCII Act and was acting within the scope of his actual authority as an employee and officer of the CFMEU. Before trial, the Applicant and the respondents filed a statement of agreed facts and admissions. The agreed facts and admissions are set out in Annexure A.

REGULATORY FRAMEWORK

4    It is common ground that the Applicant, appointed pursuant to s 16 of the FWBI Act, is entitled to bring this proceeding seeking orders pursuant to s 49(1) of the BCII Act.

5    These proceedings concern alleged contraventions of ss 43(1)(a) and 38 of the BCII Act. Section 43(1)(a) of the BCII Act provides that a person must not organise or take action, or threaten to organise or take action, with intent to coerce another person to (relevantly) employ a person as a building employee. There are three necessary elements to make out a s 43(1)(a) contravention, namely:

1.    the first person organise or take (or threaten to organise or take) “action”;

2.    the action is organised or taken (or threatened to be organised or taken) with “intent to coerce” the second person; and

3.    the intention is to coerce the second person to employ a third person as a building employee.

6    Section 38 of the BCII Act provides that a person must not engage in unlawful industrial action. There are four necessary elements to make out such a contravention, namely:

1.    there be “building industrial action” (within the meaning of that term in s 36 of the BCII Act);

2.    the building industrial action be “industrially-motivated” (within the meaning of that term in s 36 of the BCII Act);

3.    the building industrial action be “constitutionally-connected action” (within the meaning of that term in s 36 of the BCII Act); and

4.    the building industrial action not be “excluded action” (within the meaning of that term in s 36 of the BCII Act).

ANALYSIS

7    As noted earlier, the parties agreed certain facts and admissions: see Annexure A.

8    It is not unusual in modern litigation for proceedings commenced by a regulator against a defendant to be resolved and for the parties to jointly approach the Court with an agreed statement of facts. The beneficial consequences of such a resolution are well known: see, by way of example, NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 290-291. It has been suggested that cases which involve serious contraventions of the law cannot be “settled” by agreed facts that do not present a fair and accurate picture of the relevant offending to the Court: cf Australian Securities and Investments Commission v Ingleby [2013] VSCA 49 at [31]. So much may be accepted. When this proceeding was settled, the only documents filed with the Court were the originating application and a statement of claim. As a result, in assessing whether the agreed facts and admissions present a fair and accurate picture of the offending conduct, the Court, in the exercise of its judicial power, must satisfy itself that it has sufficient facts and matters to enable it to assess and impose an appropriate penalty: cf Ingleby at [33] citing with approval Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 at [79]. If the Court forms the view that it does not have sufficient facts and matters, it can and should request the parties to provide additional evidence or information: Mobil Oil at [79].

9    Consistent with the exercise of judicial power, the first question to be asked is whether the Court does have sufficient facts and matters to enable it to assess and impose a penalty in the proper exercise of that judicial power? Subject to one matter that is addressed at [40]-[43] below, the answer to that question is yes. The agreed facts and admissions in this case place the Court in a position to properly discharge its constitutional responsibilities. The present case faced none of the problems identified in Ingleby: at [31]-[46].

10    Here, the conduct occurred over a number of days in 2010 – 31 August, 26 and 27 October and 11 November 2010 – and at a number of sites. A number of the respondents were involved on more than one day. The conduct will be addressed chronologically, cross-referenced to the statement of agreed facts and admissions.

31 August 2010

11    The conduct on 31 August 2010 involved the Second Respondent (Stephenson), the Fifth Respondent (Doyle) and the CFMEU on two sites of the project to design and build the Peninsula Link freeway (the Peninsula Link Project) – the entrance to the Cranbourne-Frankston Road compound site (the Cranbourne-Frankston Road site) and the entrance to the main Peninsula Link compound (the Seaford Compound).

12    On 31 August 2010, Stephenson engaged in:

1.    a blockade of the entrance to the Cranbourne-Frankston Road site of the Peninsula Link Project, thereby preventing access to and from the Cranbourne-Frankston Road site; and

2.    a blockade of the entrance to the Seaford Compound of the Peninsula Link Project, thereby preventing vehicular access to and from the Seaford Compound –

such conduct being engaged in with intent to coerce Abigroup Contractors Pty Ltd (Abigroup Contractors) to employ particular members of the CFMEU on the Peninsula Link Project, including four identified members (four identified members). That conduct contravened s 43(1)(a) of the BCII Act: see [33]-[40] of Annexure A.

13    Doyle also engaged in:

1.    a blockade of the entrance to the Cranbourne-Frankston Road site of the Peninsula Link Project, thereby preventing access to and from the Cranbourne-Frankston Road site; and

2.    a blockade of the entrance to the Seaford Compound of the Peninsula Link Project, thereby preventing vehicular access to and from the Seaford Compound –

such conduct being engaged in with intent to coerce Abigroup Contractors to employ particular CFMEU members on the Peninsula Link Project, including four identified members. That conduct contravened s 43(1)(a) of the BCII Act: see [33]-[40] of Annexure A.

14    The CFMEU contravened s 43(1)(a) of the BCII Act by reason of being vicariously liable for the conduct referred to in [12] and [13] above: see [40]-[42] of Annexure A.

26 and 27 October 2010

15    The conduct on 26 and 27 October 2010 involved the Fourth Respondent (MacDonald), Stephenson, the Third Respondent (Powell) and the CFMEU at numerous sites.

16    MacDonald contravened s 38 of the BCII Act for being involved (within the meaning of s 48(2) of the BCII Act) in unlawful strike action by employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working at the Truganina South Primary School Project Site at Federation Boulevard, Truganina (the Truganina Site) on 27 October 2010. His involvement having directed those employees to strike for the day: see [69]-[75] of Annexure A.

17    Stephenson, in directing:

1.    on 26 October 2010, employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working on the Southern Link Upgrade Alliance Project in Victoria (SLU Project) to strike for the day;

2.    on 27 October 2010, employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working on the Tooradin Primary School Project Site at Bayview Road, Tooradin (the Tooradin Site) to strike for the day;

3.    on 27 October 2010, employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working on the Mt Eliza North Primary School Project Site at Moseley Drive, Mt Eliza North (the Mt Eliza Site) to strike for the day;

4.    on 27 October 2010, employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working on the Derinya Primary School Project Site at Derinya Drive, Frankston (the Derinya Site) to strike for the day; and

5.    on 27 October 2010, employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working on the Dromana Primary School Project Site at McCulloch Street, Dromana (the Dromana Site) to strike for the day –

such conduct being engaged in with intent to coerce Abigroup Contractors to employ particular CFMEU members on the Peninsula Link Project, including four identified members, contravened s 43(1)(a) of the BCII Act: see [43]-[68] and [76]-[78] of Annexure A.

18    Similarly, Powell in directing:

1.    on 26 October 2010, employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working on the SLU Project to strike for the day;

2.    on 27 October 2010, employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working on the Tooradin Site to strike for the day;

3.    on 27 October 2010, employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working on the Mt Eliza Site to strike for the day;

4.    on 27 October 2010, employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working on the Derinya Site to strike for the day; and

5.    on 27 October 2010, employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working on the Dromana Site to strike for the day –

such conduct being engaged in with intent to coerce Abigroup Contractors to employ particular CFMEU members on the Peninsula Link Project, including four identified members, contravened s 43(1)(a) of the BCII Act: see [43]-[68] and [76]-[78] of Annexure A.

19    The CFMEU contravened s 43(1)(a) of the BCII Act by reason of being vicariously liable for:

1.    the conduct of MacDonald referred to in [16] above, such conduct being engaged in with intent to coerce Abigroup Contractors to employ particular CFMEU members on the Peninsula Link Project, including four identified members, contrary to s 43(1)(a) of the BCII Act;

2.    the conduct of Stephenson referred to in [17] above; and

3.    the conduct of Powell referred to in [18] above,

see [76]-[78] of Annexure A.

11 November 2010

20    The conduct on 11 November 2010 involved Doyle, MacDonald, the Sixth Respondent (Benstead), the Seventh Respondent (Parker), Stephenson, Powell and the CFMEU at numerous sites.

21    Doyle contravened s 38 of the BCII Act for being involved (within the meaning of s 48(2) of the BCII Act) in unlawful strike action engaged in on 11 November 2010 by:

1.    employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working at the Lyndhurst Primary School Project Site at 70 Brookwater Way, Lyndhurst (the Lyndhurst Site): see [79]-[86] of Annexure A;

2.    employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working at the Cranbourne East Primary School Project Site at 50 Stately Drive, Cranbourne East (the Cranbourne East Site), such involvement by Doyle being constituted by him having directed those employees to strike for the day: see [115]-[122] of Annexure A.

In each case, Doyle directed those employees to strike for the day.

22    MacDonald contravened s 38 of the BCII Act for being involved (within the meaning of s 48(2) of the BCII Act) in unlawful strike action engaged in on 11 November 2010 by employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working at the Truganina Site. MacDonald’s involvement was directing those employees to strike for the day: see [87]-[94] of Annexure A.

23    Benstead contravened s 38 of the BCII Act for being involved (within the meaning of s 48(2) of the BCII Act) in unlawful strike action engaged in on 11 November 2010 by employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working at the Aitken Creek Primary School Project Site at 51-81 Grevilla Street, Craigieburn (the Aitken Site). Benstead’s involvement was directing those employees to strike for the day: see [103]-[110] of Annexure A.

24    Parker contravened s 38 of the BCII Act for being involved (within the meaning of s 48(2) of the BCII Act) in unlawful strike action engaged in on 11 November 2010 by employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working at the Drouin South Primary School Project Site at Westernport Road, Drouin (the Drouin Site). Similarly, Parker’s involvement was directing those employees to strike for the day: see [95]-[102] of Annexure A.

25    Stephenson’s conduct was in a different category. He engaged with others in a verbal altercation with representatives of Abigroup Contractors (such conduct including abusive language and the taking of photographs) with an intent to coerce Abigroup Contractors to employ particular CFMEU members on the Peninsula Link Project, including four identified members. That conduct contravened s 43(1)(a) of the BCII Act: see [129]-[131] of Annexure A.

26    Powell’s conduct was of two kinds. Like Doyle, MacDonald, Benstead and Parker, he directed employees of both Abigroup Contractors and sub-contractors of Abigroup Contractors working on the Mt Eliza Site to strike for the day: see [111]-[114] of Annexure A. He also engaged with others in a verbal altercation with representatives of Abigroup Contractors at the Cranbourne-Frankston Road site (such conduct including abusive language and the taking of photographs). In each case, his conduct was intended to coerce Abigroup Contractors to employ particular CFMEU members on the Peninsula Link Project, including four identified members. That conduct contravened s 43(1)(a) of the BCII Act: see [129]-[131] of Annexure A.

27    The CFMEU contravened s 43(1)(a) of the BCII Act (see [131]-[134] of Annexure A) by being vicariously liable for:

1.    the conduct of Doyle in [21] above, MacDonald in [22] above, Benstead in [23] above and Parker in [24] above. The conduct was engaged in with intent to coerce Abigroup Contractors to employ particular CFMEU members on the Peninsula Link Project, including four identified members;

2.    the conduct of Stephenson referred to in [25] above; and

3.    the conduct of Powell referred to in [26] above.

GENERAL PRINCIPLES AND ANALYSIS

28    The principles to be applied are not in dispute. The overriding principle when fixing a penalty is to ensure that it is proportionate to the gravity of the contravening conduct: Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 92-93. There are three purposes to be served by the imposition of a penalty – (1) Punishment, which must be proportionate to the offence and in accordance with prevailing standards, (2) Deterrence, both personal and general and (3) Rehabilitation: Ponzio v B&P Caelli Constructions Pty Ltd (2007) 158 FCR 543 at [93] and Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2011] FCA 810 at [26].

29    The Court’s task, in general, is to weigh all relevant factors in reaching a conclusion that a particular penalty should be imposed: Markarian v The Queen (2005) 228 CLR 357 at [37] and the authorities cited. As the High Court said in Wong v The Queen (2001) 207 CLR 584 at [74]-[76], “the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes account of them all” – an “instinctive synthesis”.

30    What then are the relevant factors? They include the nature and extent of the 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 respondents, whether the contraventions arose out of one course of conduct, whether senior management was involved in the conduct, whether there has been any contrition exhibited, the cooperation of the respondents and the need for deterrence: Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357 at [57]-[58]. These factors are not mandatory: Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at [91].

31    Three other principles should be noted. First, the imposition of pecuniary penalties for contraventions of civil penalty provisions should give effect to the statutory purposes of the BCII Act: Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61 at [56]-[57]. Second, any penalty imposed should not exceed that which is appropriate or proportionate to the gravity of the contravention considered in light of the objective circumstances: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2012] FCA 189 at [21] (ABCC v CFMEU). Third, attention to the maximum penalty is necessary; the maximum penalty is reserved for the worst type of cases falling within the relevant prohibition: ABCC v CFMEU at [23].

AGREED PENALTIES

32    The parties have agreed the penalties. The Court’s approach to agreed penalties has been the subject of considerable judicial ink: see, by way of example, Mobil Oil at [47]-[60]; Australian Securities and Investments Commission v Vizard (2005) 145 FCR 57 at [45]; and Ingleby.

33    In the end, the principles to be applied may be simply stated. First, the question of an appropriate penalty for a proven contempt or an established breach of a statutory prohibition is a matter for, and function of, the Courts in the exercise of judicial power. Secondly, contrary to statements in some cases, the role of the Court in addressing an agreed penalty is not to exercise an “appellate” role: Ingleby at [29] and [99]. The role of the trial judge is to give such weight to an agreed penalty as is appropriate and to treat the joint submission as it is – a joint submission – to be considered as a factor, an important factor, in the exercise of judicial power of fixing the appropriate penalty in the circumstances of the particular case. These principles are consistent with the observations of Lockhart J in Australian Competition and Consumer Commission v Pioneer Concrete (Qld) Pty Ltd (1996) ATPR 41-457 at 41,581-41,582. The role of the Court is to assess what it would do itself based on the facts. Whether the Court assesses for itself what is the appropriate penalty and then tests that against the agreed penalty, or the Court asks itself whether the agreed penalty is broadly in accord with what the Court would have done acknowledging that the fixing of quantum – the task is not an exact science. The role of the Court is the same – to impose a penalty that is proportionate to the gravity of the contravening conduct. Much of the current debate about the appropriate approach has descended into a debate about which goes first – the Court assessing the penalty having regard to the agreed penalty or assessing whether the agreed penalty is within the appropriate range. For my part, that debate is distracting. It is distracting because it ignores the important role of the fundamental principles of sentencing that must be considered by a trial judge.

34    Pursuant to s 49(2)(a) of the BCII Act, the maximum penalties for a contravention of ss 38 or 43 of the BCII Act are $110,000 (1,000 penalty units) for a body corporate and $22,000 (200 penalty units) for an individual: s 4(1) of the BCII Act read with s 4AA of the Crimes Act 1914 (Cth). The CFMEU is a body corporate: s 27 of the FW(RO) Act.

ANALYSIS

35    What then is the position here?

Nature and extent of the conduct

36    First, the nature and extent of the conduct. Prior to June 2010, the CFMEU and Abigroup Contractors had been in dispute over whether Abigroup Contractors was required to redeploy its employees from projects which were finishing to new projects: see [26] of Annexure A. The CFMEU claimed that Abigroup Contractors, in the past, had redeployed the employees: see [26] of Annexure A. In June 2010, the CFMEU sought the redeployment of four identified members to the Peninsula Link Project. Abigroup Contractors did not accede to those requests. In August 2010, Abigroup Contractors began deploying or employing persons to work on the Peninsula Link Project. The unlawful conduct commenced on 31 August 2010 and continued on 26 and 27 October and 11 November 2010.

37    The unlawful conduct constituted a concerted and persistent attempt by the CFMEU and the individual named respondents to coerce Abigroup Contractors to employ four identified members on the Peninsula Link Project. It could not be said that the contravening conduct was inadvertent or genuinely believed to be lawful. The respondents’ conduct was part of a deliberate industrial strategy. The unlawful conduct occurred at various sites on various days. The unlawful conduct included blockading of sites, directing workers not to perform any further work at numerous sites and a verbal altercation at a site. That conduct, separately and collectively, was serious in nature. It is important to understand that the CFMEU had lawful means available to it to seek to have particular members employed on the Peninsula Link Project. The existence of alternative lawful means exacerbates the seriousness of the conduct. Taken together, those matters favour the imposition of a higher penalty: see Director of the Fair Work Building Industry Inspectorate v Abbott (No 6) [2013] FCA 942 at [28].

Nature and extent of the loss or damage or other consequences of the conduct

38    Next, the nature and extent of the loss or damage or other consequences of the conduct. Three aspects should be noted. The first element of loss and damage comprised the inconvenience to Abigroup Ltd, Abigroup Contractors and the employees and sub-contractors of Abigroup Contractors caused by the fact that vehicles and deliveries were prevented from entering two sites during the 31 August 2010 blockades: see [135] of Annexure A. The second element was the delay to work on the various sites caused by the strike action on 26 and 27 October and 11 November 2010. As a result of the directions not to perform any further work, other than some nominal work, no further work was performed at the site from the time of the direction: see [136] of Annexure A. These events led to the third aspect – a requirement to reorganise work on each site for the following day: see [136] of Annexure A. There is no evidence of the “cost” caused by those matters although the facts provide a sufficient basis from which to infer that there would have been some cost: Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375 at [52].

Single course of conduct?

39    The next matter to be considered is whether the contraventions were distinct or arose out of a single course of conduct. This issue is not straightforward. First, the individual respondents. For each of Stephenson, Powell, Doyle and MacDonald, their purpose was the same – to coerce Abigroup Contractors to employ four identified members on the Peninsula Link Project. However, the contraventions of the BCII Act took place on more than one day, at more than one site and necessarily involved different participants. Each contravention was a distinct contravention: Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461 at [36]-[41]. The positions of Parker and Benstead are different. They contravened the BCII Act on one day at one site. As the Applicant submitted, they were one off incidents. That leaves the position of the CFMEU. It is vicariously liable for the contraventions just described. Its conduct involved a coordinated course of conduct engaged in for a single purpose – to coerce Abigroup Contractors to employ four identified members on the Peninsula Link Project. However, as we have seen, there was more than one incident at more than one site. The contravening conduct was spread over a period of months – 31 August, 26 and 27 October and 11 November 2010. And, no less importantly, the tactics adopted were different.

Position of responsibility and involvement of senior management?

40    In that context, it is necessary to turn to consider the positions held by the respondents within the CFMEU. Each of the individual respondents was an organiser. Each held a relatively senior role within the CFMEU’s structure. However, their conduct was not unrelated. It was coordinated by the CFMEU. The Applicant submitted there is no evidence in the statement of agreed facts and admissions that any persons more senior than the individual respondents were involved in the contraventions. It is correct that the statement of agreed facts and admissions contains that omission.

41    Despite the lack of any direct evidence of the involvement of more senior CFMEU representatives, the Applicant submitted that the following matters support an inference that senior CFMEU representatives were involved in the contraventions:

1.    The contraventions followed a meeting on 16 June 2010 attended by Mr Ralph Edwards (President of the CFMEU Construction & General Division, Victorian Branch (C & G Victoria)) and Mr John Setka (then the Assistant Secretary of C & G Victoria) where the CFMEU demands were first put to Abigroup Contractors: see [27]-[28] of Annexure A.

2.    The contraventions involved six CFMEU organisers holding relatively senior roles within the CFMEU (as opposed to junior employees).

3.    Between July and November 2010, Stephenson and Powell made the same demands to Abigroup Contractors’ General Superintendent for the Peninsula Link Project as had been made at the 16 June 2010 meeting.

4.    The intention of the individual respondents who participated in the unlawful conduct on 31 August 2010, 26 and 27 October 2010, and 11 November 2010 was the same, namely, to coerce Abigroup Contractors to employ particular CFMEU members on the Peninsula Link Project, including four identified members (such coercion also involving the same demands that had been made in the 16 June 2010 meeting).

5.    The conduct on 26 and 27 October 2010 occurred at six different sites, and the conduct on 11 November 2010 occurred at seven different sites. The conduct would appear to be part of a co-ordinated strategy on the part of the CFMEU. This suggests the involvement of more senior management, or, at least, knowledge and approval by senior management.

6.    Several CFMEU organisers were present at the Cranbourne-Frankston Road site on 11 November 2010, including a number of organisers from interstate who were present in Melbourne for a CFMEU meeting on that day: see [123]-[127] of Annexure A. This suggests a co-ordinated strategy, and the likely involvement and/or knowledge of senior CFMEU management.

42    In particular, the Applicant submitted that from these agreed facts the Court should infer that senior CFMEU management were either involved in the contraventions or, alternatively, aware of the contravening conduct and took no steps to prevent the contraventions being committed. I accept that submission.

43    It is well established that in a civil penalty proceeding, the Court may draw a Jones v Dunkel (1959) 101 CLR 298 inference: see, for example, Adler v Australian Securities and Investments Commission (2003) 46 ACSR 504 at [664]-[669]. However, in the circumstances of the present case, it is unnecessary to do so. The agreed facts provide a sufficient factual basis from which to infer the direct involvement of senior management of the CFMEU in the contraventions.

Size of the CFMEU

44    The next consideration is the size of the CFMEU. The CFMEU is a large and well resourced trade union in a strong financial position. The CFMEU did not seek a mitigation of the penalty because of its size or financial position.

Contrition or corrective action

45    The respondents have not put forward any expression of contrition or any evidence of corrective action by the CFMEU. Lack of contrition is not an aggravating factor that might increase a penalty: Cahill v Construction, Forestry, Mining and Energy Union (No 4) (2009) 189 IR 304 at [87]. But a failure to forward any expression of contrition or any evidence of corrective action means that there is no discount to be applied in the imposition of the penalty. Although there is no evidence of contrition or corrective action, the respondents have at a relatively early stage in the proceedings made significant admissions that have avoided the time and expense associated with what would otherwise have been a lengthy trial: Ponzio at [99].

Prior contraventions of similar legislation

46    Next, the prior relevant conduct. The CFMEU has engaged in a significant number of prior contraventions of similar legislation. These contraventions are relevant to an assessment of penalty: Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88 at [141]. They justify a heavier sentence although they cannot lead to the imposition of a penalty disproportionate to the gravity of the offence: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-478. The position of the individual respondents is different. MacDonald has no record of prior similar conduct. That factor warrants a discount from the maximum penalty. Doyle has one prior contravention. The other individual respondents have a record of prior similar conduct involving more than one prior contravention. Stephenson and Parker have three prior contraventions. Powell has six prior contraventions and Benstead has two prior contraventions.

Deterrence and totality

47    That leaves two final considerations – deterrence and the totality principle. Engaging in conduct with an intention to coerce an employer to employ a person as a building employee (which includes unlawful strike action) is objectively serious. The penalties must reflect the seriousness of the conduct and act as a deterrent to others likely to engage in similar contraventions: Ponzio at [93]. However, as we have seen, the penalty fixed by the Court must be proportionate to the gravity of the offence and the consideration of deterrence cannot be inconsistent with that principle. In addition, the Court must take into account the totality principle in determining the appropriate level of penalty to ensure that the aggregate penalties imposed are not oppressive or crushing: see Ophthalmic at [23], [66]-[71] and [94]-[102].

Parsimony

48    Before turning to the question of the just and appropriate penalty, it is necessary to address a submission put by the respondents under the heading “Parsimony” by reference to the decision of the Full Court of the Federal Court in R v Valentini (1980) 48 FLR 416 at 420. The relevant passage reads:

The judge must ensure that he imposes the minimum term consistent with the attainment of the relevant purposes of sentencing taking care that he punishes only for the crime or crimes before him.

49    The respondents submitted that this approach had been followed in civil penalty proceedings in an industrial context and required the Court to impose the “minimum” penalty: see Fair Work Ombudsman v Tiger Telco Pty Ltd (in liq) [2012] FCA 479 at [20] and ABCC v CFMEU, at [23]. With respect to the primary judge in both Tiger Telco and ABCC v CFMEU, the passage cited from Valentini does not establish a principle of “parsimony” that required the court to impose the minimum. Valentini was a crown appeal against the sentence imposed on respondents who pleaded guilty to armed robbery and shooting with intent. The passage cannot be read out of context. The relevant passage reads:

The task of a sentencing judge is not an easy one. He is invested with a discretion which entails the balancing of the often competing alternatives of sentencing. It has been said many times that the dominant theme in sentencing is to provide protection to society. To achieve this, the sentencing judge must balance retribution – in the sense of the infliction of a just punishment to express the moral outrage of the community: deterrence – of the particular offender and others in the community who may consider similar action: and rehabilitation – ensuring that the sentence imposed is consistent, if possible, with the offender’s returning to society as a contributing member. This delicate process is often complicated by the need to have regard for a uniform and national approach to sentencing, “a consistent correlation”, while looking to society – with whose moral outrage and protection the judge is immediately concerned and the individual offender himself. The judge must ensure that he imposes the minimum term consistent with the attainment of the relevant purposes of sentencing taking care that he punishes only for the crime or crimes before him.

We would refer to the judgment of Brennan J in Channon v The Queen where his Honour cited R v Geddes, R v Goodrich and R v Cuthbert. There are many other cases attempting to analyse the task involved and debate has ranged constantly over the field of sentencing aims; whether punishment deters, whether “retribution” is a legitimate aim, whether rehabilitation should be the primary concern. But it is the interaction of the facts with the perception of societary circumstances that in each provides the sentence which the judge considers will best protect and reassure society.

(Citations omitted.)

Read in context, the Court was stating no more than that a sentencing judge’s task is not easy and that the outcome of that task, at the very least, must impose the minimum term consistent with the attainment of the purposes of sentencing for the crimes committed. Put another way, a failure by the sentencing judge to do that will lead to the sentencing task miscarrying.

50    What role then does the principle of parsimony have in an industrial context? First, the principle and then its application.

51    The principle is established at common law. At common law, it requires the selection of the least severe sentencing option open to a sentencer which achieves the purpose or purposes of punishment in the case and therefore achieves the ultimate aim of protecting society: see, by way of example, R v Fyfe (1985) 40 SASR 120 at 129 and Crawley v R (1981) 5 A Crim R 451 at 456. It was judicially considered as early as the 1950s in Webb v O’Sullivan [1952] SASR 65 at 66: see also Channon v The Queen (1978) 33 FLR 433 at 438. It also finds reflection in the various sentencing statues but expressed in different terms. For example, a narrower expression of the principle is set out in s 17A of the Crimes Act 1914 (Cth). As the Applicant submitted, the principle is primarily directed at mercy in the criminal context where a person’s liberty is at risk: see, by way of example, R v Moyse (1988) 38 A Crim R 169 at 172-173.

52    Next, where then does the principle sit in the sentencing method? It has been suggested that the nature of the principle means that it is considered in the final stages of the sentencing process at the point where the sentencer has considered all relevant matters. One of those matters is, of course, the possible sentencing options that would meet the objective of protecting society. In those sentencing tasks involving the possibility of the imposition of a custodial sentence, it is unsurprising that the relevant statutes require the sentencing judge to be satisfied that no other sentence is appropriate before imposing a sentence of imprisonment.

53    It is important to note, however, that even where the principle of parsimony is required to be considered by a sentencing judge (eg s 5(4) of the Sentencing Act 1991 (Vic)), the sentencing judge is not required to give reasons for rejecting non-custodial sentences. In other words, although a sentencing judge is not formally relieved of a duty to consider all available sanctions, the sentencing task does not fall into error because the sentencing judge commences assessment of the appropriate sentence at a realistic point in the hierarchy of available sentencing options: R v O’Connor [1987] VR 496.

54    The sentencing task in imposing civil penalties in the industrial law context is substantially different from those involving the imposition (or the possibility of the imposition) of a custodial sentence. For example, the sentencing options in the present industrial law context are limited by the statute – a monetary penalty where the statute imposes a maximum penalty: cf Trade Practices Commission v Farrow (1990) 95 ALR 53 at 65 and Australian Securities and Investments Commission v Petsas (2005) 23 ACLC 269 at [16]. The liberty of the subject is not at risk in civil penalty proceedings under the BCII Act.

55    The task of the sentencer under the BCII Act is sufficiently described as fixing a penalty that is just in all the circumstances. Separate reference to notions of parsimony has the capacity to mislead if it distracts from the need to fix the just and appropriate penalty. It has the capacity to mislead because the reference to “parsimony” means different things in different contexts. In the current context, the common law principle (the selection of the least severe sentencing option open to a sentencer which achieves the purpose or purposes of punishment in the case and therefore achieves the ultimate aim of protecting society) adds little, if anything, to the task of the sentencer under the BCII Act of fixing a penalty that is just and appropriate in all the circumstances.

56    What then is the just and appropriate penalty? Having regard to all of the factors that have been mentioned, the following penalties are just and appropriate:

1.    In respect of the contraventions of s 43(1)(a) of the BCII Act on 31 August 2010:

1.1    a penalty of $5,000 for Doyle.

1.2    a penalty of $6,500 for Stephenson.

1.3    a penalty of $35,000 for the CFMEU.

2.    In respect of the contraventions of s 38 of the BCII Act on 27 October 2010, a penalty of $2,500 for MacDonald.

3.    In respect of the contraventions of s 43(1)(a) of the BCII Act on 26 and 27 October 2010:

3.1    a penalty of $10,000 for Stephenson.

3.2    a penalty of $10,000 for Powell.

3.3    a penalty of $55,000 for the CFMEU.

4.    In respect of the contraventions of s 38 of the BCII Act on 11 November 2010:

4.1    a penalty of $6,000 for Doyle.

4.2    a penalty of $2,500 for MacDonald.

4.3    a penalty of $2,500 for Parker.

4.4    a penalty of $3,000 for Benstead.

5.    In respect of the contraventions of s 43(1)(a) of the BCII Act on 11 November 2010:

5.1    a penalty of $12,500 for Stephenson.

5.2    a penalty of $14,500 for Powell.

5.3    a penalty of $65,000 for the CFMEU.

57    The penalties are consistent with those jointly proposed by the parties.

Associate:

Dated:    7 October 2013

ANNEXURE A - AGREED FACTS AND ADMISSIONS

The Parties

1.    The First Respondent (the CFMEU) is an association of employees registered as an organisation pursuant to s 26 of the Fair Work (Registered Organisations) Act 2009 (Cth) (the FW(RO) Act) and, at all relevant times, was both an organisation and industrial association within the meaning attributed to those terms by s 4 of the Building and Construction Industry Improvement Act 2005 (Cth) (the BCII Act).

2.    At all relevant times, each of:

(a)    the Second Respondent (Stephenson);

(b)    the Third Respondent (Powell);

(c)    the Fourth Respondent (McDonald);

(d)    the Fifth Respondent (Doyle);

(e)    the Sixth Respondent (Benstead); and

(f)    the Seventh Respondent (Parker),

was both an employee organiser of the CFMEU and an officer of the CFMEU within the meaning given to that term by ss 4 and 69(3) of the BCII Act and was acting within the scope of his actual authority as an employee and officer of the CFMEU.

3.    By reason of s 69(1)(b) of the BCII Act, at all relevant times the conduct of the Second to Seventh Respondents was the conduct of the CFMEU.

Abigroup companies

4.    At all relevant times, Abigroup Ltd (Abigroup Ltd):

(a)    conducted the business of a construction and civil engineering contractor;

(b)    was undertaking a number of construction and civil engineering projects within the State of Victoria;

(c)    was a constitutional corporation for the purposes of s 4 of the BCII Act; and

(d)    was a building industry participant for the purposes of s 4 of the BCII Act.

5.    At all relevant times, Abigroup Contractors Pty Ltd (Abigroup Contractors):

(a)    was a wholly owned subsidiary of Abigroup Ltd;

(b)    employed wages employees working on building and civil engineering projects undertaken by Abigroup Ltd;

(c)    was a constitutional corporation for the purposes of s 4 of the BCII Act; and

(d)    was a building industry participant for the purposes of s 4 of the BCII Act.

Relevant Abigroup Ltd projects

Peninsula Link Project

6.    At all relevant times, Abigroup Ltd was engaged (as a member of the Southern Way Consortium) by the Living Melbourne Authority, to design and build the Peninsula Link freeway (Peninsula Link Project).

7.    Peninsula Link involved the construction of approximately 27 kilometres of freeway, including road works, bridges, landscaping, pavements and remedial works, connecting the East Link Freeway at Carrum Downs to the Mornington Peninsula Freeway at Mt Martha and had a project value for Abigroup Ltd of approximately $650 million.

SLU Project

8.    At all relevant times, Abigroup Ltd was engaged by the Transurban Group to undertake Stage 2 of the Southern Link Upgrade Alliance Project (SLU Project).

9.    The SLU Project involved the upgrade and strengthening of the Monash Freeway, CityLink section, between Punt Road and Toorak Road and had a project value for Abigroup Ltd of approximately $55 million.

PVIS Project

10.    At all relevant times, Abigroup Ltd was engaged by Axiom Education Victoria Pty Ltd to build 11 new Victorian primary schools across the greater metropolitan area of Melbourne, such construction work being known as the Partnership Victoria In Schools Project (PVIS Project), including:

(a)    Truganina South Primary School, at Federation Boulevard, Truganina;

(b)    Lyndhurst Primary School, at 70 Brookwater Way, Lyndhurst;

(c)    Aitken Creek Primary School (formerly known as Craigieburn West Primary School), at 51-81 Grevillia Street, Craigieburn; and

(d)    Cranbourne East Primary School, at 50 Stately Drive, Cranbourne East.

BER Package Projects

11.    At all relevant times, Abigroup Ltd was engaged by the Victorian Department of Education and Early Childhood Development, to construct libraries and learning centres at particular Victorian primary schools, such construction work known as the Building the Education Revolution Package 44 Project (BER Package 44 Project), including at the Drouin South Primary School at Westernport Road Drouin South.

12.    Further, at all material times Abigroup Ltd was engaged by DEECD to construct multi-purpose buildings at 26 Victorian primary schools across Melbourne’s Southern Metropolitan Region, such construction work being known as the Building the Education Revolution Package 9 Project (BER Package 9 Project), including:

(a)    Tooradin Primary School, at Bayview Road, Tooradin;

(b)    Mt Eliza North Primary School, at Moseley Drive, Mt Eliza North;

(c)    Derinya Primary School, at Derinya Drive, Frankston; and

(d)    Dromana Primary School, at McCulloch Street, Dromana.

Abigroup employees and sub-contractors

13.    At all relevant times, Abigroup Contractors employed persons to perform work for Abigroup Ltd on:

(a)    the SLU Project;

(b)    the PVIS Project;

(c)    the BER Package 44 Project; and

(d)    the BER Package 9 Project.

14.    Between August 2010 and November 2010, Abigroup Contractors employed persons to perform work for Abigroup Ltd on the Peninsula Link Project.

15.    At all relevant times, for the purposes of s 5 of the BCII Act, the work performed by the employees referred to in paragraphs 13 and 14 above (the Abigroup employees) was building work.

16.    At all relevant times the Abigroup employees were members of, or eligible to be members of, the CFMEU.

17.    At all relevant times, Abigroup Contractors engaged sub-contractors to perform work for Abigroup Ltd on:

(a)    the SLU Project;

(b)    the PVIS Project;

(c)    the BER Package 44 Project; and

(d)    the BER Package 9 Project.

18.    Between August 2010 and November 2010, Abigroup Contractors engaged sub-contractors to perform work for Abigroup Ltd on the Peninsula Link Project.

19.    At all relevant times, there were persons employed by the sub-contractors of Abigroup Constructors referred to in paragraphs 17 and 18 above and those employees were employed to perform building work on each of the relevant projects referred to in paragraphs 17 and 18 above.

Workplace Agreements

20.    At all relevant times, the CFMEU and Abigroup Contractors were parties to the Abigroup Contractors Pty Ltd Southern Region Engineering Division and the CFMEU Building and Construction Industry Union Collective Agreement 2008-2011 (Engineering Agreement).

21.    The Engineering Agreement:

(a)    was a union collective agreement made pursuant to the Workplace Relations Act 1996 (Cth) (the WR Act);

(b)    had a nominal expiry date of 31 November 2011; and

(c)    regulated the work of Abigroup employees working on the Peninsula Link Project and the SLU Project.

22.    At all relevant times, the CFMEU and Abigroup Contractors were parties to the Abigroup Contractors Pty Ltd - Southern Region Building Division and the CFMEU Building and Construction Industry Collective Agreement 2008-2011 Agreement (Building Agreement).

23.    The Building Agreement:

(a)    was a union collective agreement made pursuant to the WR Act;

(b)    had a nominal expiry date of 31 March 2011; and

(c)    regulated the work of Abigroup employees working on the PVIS Project, the BER Package 44 Project and the BER Package 9 Project.

The Peninsula Link dispute

24.    At all relevant times, Paul Bull (Bull) was employed by Abigroup Contractors as General Superintendant for Peninsula Link, and his responsibilities included:

(a)    on site industrial relations issues;

(b)    union right of entry on to the Peninsula Link Project;

(c)    the recruitment of employees and the engagement of sub-contractors for the Peninsula Link Project; and

(d)    supervising the election of employee representatives and employee occupational health and safety representatives for the Peninsula Link Project.

25.    In June 2010, Abigroup had no non-management employees working on the Peninsula Link Project.

26.    Prior to June 2010, the CFMEU and Abigroup Contractors had been in dispute over whether Abigroup Contractors was required to redeploy its employees from projects which were finishing to new projects such as the Peninsula Link Project. The CFMEU claimed that Abigroup Contractors had, in the past, so redeployed such employees. Abigroup Contractors disputed that it was required to redeploy its employees to another project upon a relevant project concluding and maintained that people needed to apply to be considered to work on a new project.

27.    At about 10:30 am on 16 June 2010, a meeting took place at the CFMEU’s offices at 500 Swanston Street, Carlton (the 16 June 2010 meeting) between:

(a)    Ralph Edwards, President of the Construction and General Division, Victorian Branch (C & G Victoria) of the CFMEU;

(b)    John Setka, Assistant Secretary, C & G Victoria;

(c)    Stephenson;

(d)    Powell;

(e)    Bull;

(f)    Robert Currie, Abigroup Human Resources Manager for Peninsula Link (Currie); and

(g)    Rob Cairns, Abigroup Construction Director for Peninsula Link.

28.    At the 16 June 2010 meeting:

(a)    the CFMEU representatives demanded that particular CFMEU members, including four that the CFMEU representatives identified by name (the four identified members), be employed by Abigroup Contractors on the Peninsula Link Project; and

(b)    Abigroup Contractors refused to accede to those demands,

(the Peninsula Link dispute).

29.    By July or August 2010, Stephenson and Powell were the CFMEU organisers assigned to the Peninsula Link Project.

30.    During July and August 2010, Stephenson and Powell telephoned Bull from time to time and demanded that particular CFMEU members, including the four identified members, be employed by Abigroup Contractors on the Peninsula Link, such demands being rejected by Bull.

31.    In August 2010, Abigroup Contractors began deploying or employing persons to work on the Peninsula Link Project and engaging sub-contractors to work on the Peninsula Link Project.

32.    During the period from September 2010 to November 2010, Stephenson and Powell continued to speak to Bull on the telephone from time to time to repeat the demands made at the 16 June 2010 meeting and the Peninsula Link dispute remained unresolved.

Blockades on 31 August 2010

33.    At about 6:30 am on 31 August 2010, Stephenson, Doyle, CFMEU organiser Steve Long (Long) and another CFMEU organiser attended at the entrance to the Cranbourne-Frankston Road compound site of Peninsula Link (Cranbourne-Frankston Road site) and:

(a)    parked four CFMEU vehicles across the entrance of the Cranbourne-Frankston Road site;

(b)    stood around together on the footpath at the gate entrance to the Cranbourne-Frankston Road site; and

(c)    prevented access to and from the Cranbourne-Frankston Road site (the Cranbourne-Frankston Road Blockade).

34.    At about 6:45 am on 31 August 2010 Bull, Currie and Abigroup Contractors Civil Earthworks Superintendent David Wheildon (Wheildon), attended at the Cranbourne-Frankston Road site entrance and:

(a)    Bull asked the CFMEU organisers to remove their vehicles;

(b)    the CFMEU organisers referred to in paragraph 33 above refused this request;

(c)    Stephenson requested a meeting with Bull;

(d)    Bull replied that a meeting would occur if the CFMEU vehicles were removed;

(e)    Stephenson refused to remove the vehicles;

(f)    four Victoria Police Officers initially attended and then a Senior Highway Patrol Officer also attended; and

(g)    the Senior Highway Patrol Officer spoke to the CFMEU organisers referred to in paragraph 33 above and at about 8:15 am these organisers removed the CFMEU vehicles from the Cranbourne-Frankston Road site entrance.

35.    At about 8:30 am on 31 August 2010, Stephenson, Doyle, Long and an unknown person attended at the main Peninsula Link compound at Oliphant Way, Seaford (Seaford Compound); and

(a)    parked two CFMEU vehicles across the entrance to the Seaford Compound;

(b)    stood around together at the Seaford Compound gate entrance; and

(c)    thereby prevented vehicle access to and from the Seaford Compound (the Seaford Compound Blockade).

36.    At about 8:45 am on 31 August 2010, Bull, Currie and Wheildon attended at the Seaford Compound and:

(a)    Bull spoke to the CFMEU organisers referred to in paragraph 35;

(b)    Stephenson asked Bull for a meeting;

(c)    Bull replied that he would attend a meeting if the CFMEU vehicles were moved;

(d)    the Senior Highway Patrol Officer arrived;

(e)    the Senior Highway Patrol Officer spoke to the CFMEU organisers;

(f)    Stephenson said to Bull that he would move the vehicles if Bull agreed to meet him at a coffee shop and talk, and Bull agreed to this; and

(g)    at about 9:30 am the CFMEU organisers moved the two CFMEU vehicles.

37.    At about 9:45 am on 31 August 2010, a meeting took place at a coffee shop at Lathams Road, Seaford/Carrum Downs, between Stephenson, Doyle, Bull, Currie and Wheildon (the coffee shop meeting).

38.    At the coffee shop meeting, Doyle and Stephenson made demands concerning the Peninsula Link dispute, including that particular CFMEU members, including the four identified members, be employed on the Peninsula Link Project as CFMEU shop stewards and OH&S representatives.

39.    In response to the demands made in paragraph 38, Bull said that Abigroup Contractors would consider all applications for employment on Peninsula Link but Abigroup Contractors would ultimately decide who was employed on the Peninsula Link Project.

Coercive conduct on 31 August 2010

40.    Stephenson and Doyle each engaged in both the Cranbourne-Frankston Road Blockade and the Seaford Compound Blockade with intent to coerce Abigroup Contractors to employ particular CFMEU members on Peninsula Link, including the four identified members.

41.    For the purposes of s 69(1)(b) of the BCII Act, the conduct of Stephenson and Doyle in engaging in the Cranbourne-Frankston Road Blockade and the Seaford Compound Blockade was the conduct of the CFMEU.

42.    As a result, by engaging in the Cranbourne-Frankston Road Blockade and the Seaford Compound Blockade:

(a)    Stephenson contravened s 43(1)(a) of the BCII Act;

(b)    Doyle contravened s 43(1)(a) of the BCII Act; and

(c)    the CFMEU contravened s 43(1)(a) of the BCII Act.

Industrial action on 26 and 27 October 2010

SLU project

43.    On 26 October 2010, Stephenson and Powell entered the Glenferrie Road compound of the SLU Project site (the SLU Project Site) before 7:00 am to hold discussions with workers at the site.

44.    Shortly after, Stephenson and Powell conducted a meeting with the employees of both Abigroup Contractors and the Abigroup sub-contractors working at the SLU Project Site at the HA Smith Reserve near that site.

45.    During the above meeting, Stephenson and Powell directed those present at the meeting not to perform any further work that day at the SLU Project Site in response to the Peninsula Link dispute.

46.    As a result of the direction by Stephenson and Powell at the above meeting, approximately 40 employees of both Abigroup Contractors and the Abigroup sub-contractors who attended for work at the SLU Project Site that day refused to perform further work for the remainder of the day.

Tooradin Primary School

47.    At about 7:00 am on 27 October 2010, Stephenson and Powell entered the Tooradin Primary School Project Site (the Tooradin Site).

48.    At about 7:05 am, Powell said to Joshua Brown (Brown), Abigroup Contractors Foreman for the Tooradin Site, that he and Stephenson were going to speak to the workers at the site about the Peninsula Link dispute.

49.    At about 7:15 am, Stephenson and Powell conducted a meeting in the lunchroom at the Tooradin Site with a small number of employees of both Abigroup and the Abigroup sub-contractors working at the site.

50.    During the above meeting, Stephenson and Powell directed those employees present at the meeting not to perform any further work that day at the Tooradin Site in response to the Peninsula Link dispute.

51.    After the above meeting, Powell told Brown that he was sending the employees at the Tooradin Site home.

52.    As a result of the direction by Stephenson and Powell at the above meeting not to perform any further work, the employees of both Abigroup Contractors and the Abigroup sub-contractors who attended for work at the Tooradin Site that day refused to perform further work for the remainder of the day.

Mt Eliza North Primary School

53.    At about 8:30 am on 27 October 2010, Stephenson and Powell entered the Mt Eliza North Primary School Project site (the Mt Eliza Site) to hold discussions with workers at the site.

54.    Shortly after, Stephenson and Powell conducted a meeting on the Mt Eliza Site with a small number of employees of both Abigroup Contractors and the Abigroup sub-contractors working at the site.

55.    During that meeting, Stephenson and Powell directed those employees present at the above meeting not to perform any further work that day at the Mt Eliza Site in response to the Peninsula Link dispute.

56.    After the above meeting ended, Powell said to Dean McCarthy (McCarthy), Abigroup Foreman for the Mt Eliza Site, that he and Stephenson had held a meeting with the workers on site and the workers were not happy with Abigroup Contractors’ stance on the Peninsula Link dispute.

57.    As a result of the direction by Stephenson and Powell at the meeting, the employees of both Abigroup Contractors and the Abigroup sub-contractors who attended for work at the Mt Eliza Site that day refused to perform further work for the remainder of the day.

Derinya Primary School

58.    At about 9:00 am on 27 October 2010 at the Mt Eliza Site, Stephenson and Powell asked McCarthy who from Abigroup Contractors was in charge at the Derinya Primary School Project site (the Derinya Site).

59.    McCarthy replied that he would be at the Derinya Site shortly.

60.    At about 9:10 am on 27 October 2010, Stephenson and Powell entered the Derinya Site to hold discussions with workers at the site.

61.    At about 9:15 am on 27 October 2010, Stephenson and Powell conducted a meeting on the Derinya Site with a small number of employees of both Abigroup Contractors and the Abigroup sub-contractors working at the site.

62.    During the above meeting, Stephenson and Powell directed the employees present at the meeting not to perform any further work that day at the Derinya Site in response to the Peninsula Link dispute.

63.    As a result of the direction by Stephenson and Powell at the above meeting, the employees of both Abigroup Contractors and the Abigroup sub-contractors who attended for work at the Derinya Site that day refused to perform further work for the remainder of the day.

Dromana Primary School

64.    At about 10:00 am on 27 October 2010, Stephenson and Powell entered the Dromana Primary School Project site (the Dromana Site) to hold discussions with workers at the site.

65.    At about 10:00 am on 27 October 2010 at the Dromana Site, Powell told Jonathan Waters, Abigroup Contractors Foreman for the site, that he and Stephenson were taking a stance against Abigroup Contractors in relation to the Peninsula Link dispute and that they were at the Dromana Site to shut the job down.

66.    At about 10:10 am on 27 October 2010, Stephenson and Powell conducted a meeting in the Dromana Site shed with a small number of employees of both Abigroup Contractors and the Abigroup sub-contractors working at the site.

67.    During the above meeting, Stephenson and Powell directed the employees present at the meeting not to perform any further work that day at the Dromana Site in response to the Peninsula Link dispute.

68.    As a result of the direction by Stephenson and Powell at the above meeting, the employees of both Abigroup and Abigroup sub-contractors who attended for work at the Dromana Site that day refused to perform further work for the remainder of the day.

Truganina South Primary School

69.    On 27 October 2010, MacDonald entered the Truganina South Primary School Project Site (the Truganina Site) at or prior to 6:50 am and informed Samantha Sculley, Abigroup Contractors Foreman for Truganina South (Sculley) that he would hold a meeting at 7:00 am to discuss the Peninsula Link dispute.

70.    Shortly after, MacDonald conducted a meeting at the Truganina Site with a small number of employees of both Abigroup Contractors and the Abigroup sub-contractors working at that site.

71.    During that meeting, MacDonald directed those present at the meeting not to perform any further work that day at the Truganina Site in response to the Peninsula Link dispute.

72.    As a result of the direction by MacDonald at the meeting, the employees of both Abigroup Contractors and the Abigroup sub-contractors who attended for work at the Truganina Site that day refused to perform further work for the remainder of the day.

73.    The refusal by the employees referred to in paragraph 72 to perform further work on 27 October 2010 at the Truganina Site:

(a)    constituted building industrial action within the meaning given that term by s 36 of the BCII Act;

(b)    was motivated by purposes that included advancing an industrial objective of the CFMEU, namely that particular CFMEU members, including the four identified members, be employed by Abigroup Contractors on the Peninsula Link Project;

(c)    was not excluded action; and

(d)    was unlawful industrial action in contravention of s 38 of the BCII Act.

74.    By reason of the conduct referred to above, MacDonald counselled and procured the contraventions of s 38 of the BCII Act by employees of both Abigroup Contractors and the Abigroup sub-contractors at the Truganina Site and was involved in that contravention within the meaning of s 48(2) of the BCII Act.

75.    By reason of the matters above, MacDonald contravened s 38 of the BCII Act.

Coercive conduct on 26 and 27 October 2010

76.    The above conduct of:

(a)    both Stephenson and Powell at the SLU Project Site on 26 October 2010 and at the Tooradin Site, the Mt Eliza Site, the Derinya Site and the Dromana Site on 27 October 2010; and

(b)    MacDonald at the Truganina Site on 27 October 2010;

was engaged in with intent to coerce Abigroup Contractors to employ particular CFMEU members on Peninsula Link, including the four identified members.

77.    For the purposes of s 69(1)(b) of the BCII Act, the above conduct of Stephenson, Powell and MacDonald on 26 and 27 October 2010 was the conduct of the CFMEU.

78.    By reason of the matters above, by engaging in the conduct on 26 and 27 October 2010 as referred to above:

(a)    Stephenson contravened s 43(1)(a) of the BCII Act;

(b)    Powell contravened s 43(1)(a) of the BCII Act; and

(c)    the CFMEU contravened s 43(1)(a) of the BCII Act, in respect of the conduct of each of Stephenson, Powell and MacDonald.

Industrial action and conduct on 11 November 2010

Lyndhurst Primary School

79.    At about 6:20 am on 11 November 2010, Doyle entered the Lyndhurst Primary School Project site (the Lyndhurst Site) to hold discussions with workers at the site.

80.    Upon entering the Lyndhurst Site, Doyle said to Rohan Bain, Abigroup Contractors Foreman for the Lyndhurst Site, that he needed to hold a meeting with workers at the site about the Peninsula Link dispute.

81.    At about 6:45 am that day, Doyle conducted a meeting at the Art/Science area of the Lyndhurst Site with a small number of employees of both Abigroup Contractors and the Abigroup sub-contractors working at the site.

82.    During the above meeting, Doyle directed those employees present at the meeting not to perform any further work that day at the Lyndhurst Site in response to the Peninsula Link dispute.

83.    As a result of the direction by Doyle at the above meeting, most of the employees of both Abigroup Contractors and the Abigroup sub-contractors who attended for work at the Lyndhurst Site that day refused to perform further work for the remainder of the day.

84.    The refusal by those employees to perform further work on 11 November 2010 at the Lyndhurst Site:

(a)    constituted building industrial action within the meaning given that term by s 36 of the BCII Act;

(b)    was motivated by purposes that included advancing an industrial objective of the CFMEU, namely that particular CFMEU members, including the four identified members, be employed by Abigroup Contractors on the Peninsula Link Project;

(c)    was not excluded action; and

(d)    was unlawful industrial action in contravention of s 38 of the BCII Act.

85.    By reason of the conduct referred to above, Doyle counselled and procured the contravention of s 38 of the BCII Act by employees of both Abigroup Contractors and the Abigroup sub-contractors at the Lyndhurst Site and was therefore involved in that contravention within the meaning of s 48(2) of the BCII Act.

86.    By reason of the matters above, Doyle contravened s 38 of the BCII Act.

Truganina South Primary School

87.    At about 6:30 am on 11 November 2010, MacDonald entered the Truganina Site to hold discussions with workers at the site.

88.    At about 6:50 am on 11 November 2010, MacDonald told Sculley outside the Truganina Site office that there would be a meeting at 7:00 am and that it would concern the Peninsula Link dispute.

89.    At about 7:00 am that day, MacDonald conducted a meeting at the Truganina Site with a small number of employees of both Abigroup Contractors and the Abigroup sub-contractors working at the site.

90.    During the above meeting, MacDonald directed those employees present at the meeting not to perform any further work that day at the Truganina Site in response to the Peninsula Link dispute.

91.    As a result of the direction by MacDonald at the above meeting, most of the employees of both Abigroup Contractors and the Abigroup sub-contractors who attended for work at the Truganina Site that day refused to perform further work for the remainder of the day.

92.    The refusal by those employees to perform further work on 11 November 2010 at the Truganina Site:

(a)    constituted building industrial action within the meaning given that term by s 36 of the BCII Act;

(b)    was motivated by purposes that included advancing an industrial objective of the CFMEU, namely that particular CFMEU members, including the four identified members, be employed by Abigroup Contractors on the Peninsula Link Project;

(c)    was not excluded action; and

(d)    was unlawful industrial action in contravention of s 38 of the BCII Act.

93.    By reason of the conduct referred to above, MacDonald counselled and procured the contravention of s 38 of the BCII Act by employees of both Abigroup Contractors and the Abigroup sub-contractors at the Truganina Site and was involved in that contravention within the meaning of s 48(2) of the BCII Act.

94.    By reason of the matters above, MacDonald contravened s 38 of the BCII Act.

Drouin South Primary School

95.    At about 7:30 am on 11 November 2010, Parker entered the Drouin South Primary School Project site (the Drouin Site) to hold discussions with workers at the site.

96.    Soon after, Parker told Dushandan Satkunanathan, Abigroup Contractors Site Engineer, that the CFMEU was going to close down the Drouin Site and that Parker was going to speak to the workers on the site.

97.    At about 7:35 am that day, Parker conducted a meeting at the Drouin Site with a small number of employees of both Abigroup Contractors and the Abigroup sub-contractors working at the site.

98.    During the above meeting, Parker directed the employees present at the meeting not to perform any further work that day at the Drouin Site in response to the Peninsula Link dispute.

99.    As a result of the direction by Parker at the meeting, the employees of both Abigroup Contractors and the Abigroup sub-contractors who attended for work at the Drouin Site that day refused to perform further work for the remainder of the day.

100.    The refusal by those employees to perform further work on 11 November 2010 at the Drouin Site:

(a)    constituted building industrial action within the meaning given that term by s 36 of the BCII Act;

(b)    was motivated by purposes that included advancing an industrial objective of the CFMEU, namely that particular CFMEU members, including the four identified members, be employed by Abigroup Contractors on the Peninsula Link Project;

(c)    was not excluded action; and

(d)    was unlawful industrial action in contravention of s 38 of the BCII Act.

101.    By reason of the conduct referred to above, Parker counselled and procured the contravention of s 38 of the BCII Act by employees of both Abigroup Contractors and the Abigroup sub-contractors at the Drouin Site and was involved in that contravention within the meaning of s 48(2) of the BCII Act.

102.    By reason of the matters above, Parker contravened s 38 of the BCII Act.

Aitken Creek Primary School

103.    At about 8:20 am on 11 November 2010, Benstead entered the Aitken Creek Primary School Project site (the Aitken Site) to hold discussions with workers at the site.

104.    Soon after, Benstead told Adam Re, Abigroup Contractors Site Engineer, that he would be holding a meeting and handed Re a CFMEU flyer about the Peninsula Link dispute.

105.    At about 8:30 am that day, Benstead conducted a meeting outside the main entrance of the Aitken Site with a small number of employees of both Abigroup Contractors and the Abigroup sub-contractors working at the site.

106.    During the above meeting, Benstead directed the employees present at the meeting not to perform any further work that day at the Aitken Site in response to the Peninsula Link dispute.

107.    As a result of the direction by Benstead at the meeting, the employees of both Abigroup Contractors and the Abigroup sub-contractors who attended for work at the Aitken Site that day refused to perform further work for the remainder of the day.

108.    The refusal by those employees to perform further work on 11 November 2010 at the Aitken Site:

(a)    constituted building industrial action within the meaning given that term by s 36 of the BCII Act;

(b)    was motivated by purposes that included advancing an industrial objective of the CFMEU, namely that particular CFMEU members, including the four identified members, be employed by Abigroup Contractors on the Peninsula Link Project;

(c)    was not excluded action; and

(d)    was unlawful industrial action in contravention of s 38 of the BCII Act.

109.    By reason of the conduct referred to above, Benstead counselled and procured the contravention of s 38 of the BCII Act by employees of both Abigroup Contractors and the Abigroup sub-contractors at the Aitken Site and was involved in that contravention within the meaning of s 48(2) of the BCII Act.

110.    By reason of the matters above, Benstead contravened s 38 of the BCII Act.

Mt Eliza North Primary School

111.    At about 9:00 am on 11 November 2010, Powell and four unknown persons entered the Mt Eliza Site to hold discussions with workers at the site.

112.    At about 8:30 am that day, Powell conducted a meeting in the car park at the Mt Eliza Site with a small number of employees of both Abigroup Contractors and the Abigroup sub-contractors working at the site.

113.    During the above meeting, Powell directed the employees present at the meeting not to perform any further work that day at the Mt Eliza Site in response to the Peninsula Link dispute.

114.    As a result of the direction by Powell at the above meeting, the employees of both Abigroup Contractors and the Abigroup sub-contractors who attended for work at the Mt Eliza Site that day refused to perform further work for the remainder of the day.

Cranbourne East Primary School

115.    At about 9:15 am on 11 November 2010, Doyle entered the Cranbourne East Primary School Project site (the Cranbourne Site) to hold discussions with workers at the site.

116.    Soon after, Doyle told Andrew Waters, Abigroup Contractors Project Manager for the Cranbourne Site that Doyle’s attendance at the Cranbourne Site was part of an overall strategy in relation to the Peninsula Link dispute and there would be further action.

117.    At about 9:30 am that day, Doyle conducted a meeting in the smoko shed at the Cranbourne Site with a small number of employees of both Abigroup Contractors and the Abigroup sub-contractors working at the site.

118.    During the above meeting, Doyle directed those present at the meeting not to perform any further work that day at the Cranbourne Site in response to the Peninsula Link dispute.

119.    As a result of the direction by Doyle at the meeting, the employees of both Abigroup Contractors and the Abigroup sub-contractors who attended for work at the Cranbourne Site that day refused to perform further work for the remainder of the day.

120.    The refusal by those employees to perform further work on 11 November 2010 at the Cranbourne Site:

(a)    constituted building industrial action within the meaning given that term by s 36 of the BCII Act;

(b)    was motivated by purposes that included advancing an industrial objective of the CFMEU, namely that particular CFMEU members, including the four identified members, be employed by Abigroup Contractors on the Peninsula Link Project;

(c)    was not excluded action; and

(d)    was unlawful industrial action in contravention of s 38 of the BCII Act.

121.    By reason of the conduct referred to above, Doyle counselled and procured the contravention of s 38 of the BCII Act by employees of both Abigroup Contractors and the Abigroup sub-contractors at the Cranbourne Site and was involved in that contravention within the meaning of s 48(2) of the BCII Act.

122.    By reason of the matters above, Doyle contravened s 38 of the BCII Act.

Conduct at Cranbourne-Frankston Road site (Peninsula Link)

123.    At about 9:30 am on 11 November 2010, a group of approximately 12 to 14 people entered the entrance to the Cranbourne-Frankston Road site without providing any notice to Abigroup Ltd or Abigroup Contractors.

124.    The above group included the following persons:

(a)    Stephenson;

(b)    Powell;

(c)    Peter Primmer (Primmer), a CFMEU organiser based in New South Wales but present in Melbourne on 11 November 2010 for a CFMEU meeting;

(d)    Brad Upton, a CFMEU organiser based in Western Australia but present in Melbourne on 11 November 2010 for a CFMEU meeting;

(e)    additional CFMEU organisers from interstate and also present in Melbourne on 11 November 2010 for a CFMEU meeting; and

(f)    two unnamed Transport Workers Union of Australia (TWU) representatives,

(collectively referred to as the group of CFMEU and TWU representatives).

125.    At that time, there were between 15 to 20 trucks being operated by M1 Plant and Haulage near the site sheds at the Cranbourne-Frankston Road site to remove earth material from that site.

126.    Glenn Pole, Major Accounts Manager employed by M1 Haulage, was present near where the trucks were being operated.

127.    Shortly after entering the Cranbourne-Frankston Road site on 11 November 2010:

(a)    Powell told Pole that the truck drivers were going to attend at the site sheds for a meeting; and

(b)    the two TWU representatives demanded that the truck drivers attend at the site sheds for a meeting.

128.    At about 9:45 am that same day, Bull and Wheildon entered the Cranbourne-Frankston Road site and approached the group of CFMEU representatives, Pole and the truck drivers and told the truck drivers that they should go back to work.

129.    Immediately after Bull and Wheildon told the truck drivers that they should go back to work, there was a verbal altercation between the group of CFMEU and TWU representatives (including Stephenson and Powell) and Bull and Wheildon, in which the group of CFMEU and TWU representatives (including Stephenson and Powell) confronted Bull and Wheildon and behaved in an angry and provocative way towards them, including by constantly berating them, yelling obscene abuse at them and taking photos of them, for about 15 minutes.

130.    During the altercation:

(a)    Stephenson said to Bull words to the effect of “You’re a liar. You said you would consider putting on our people”, to which Bull responded with words to the effect of “I did consider it and I’m not going to do it”.

(b)    Primmer referred to the Peninsula Link dispute by saying to Bull words to the effect of “Just give them what they want and they’ll go”.

(c)    Powell said to Bull words to the effect of “I’ll have you out of here in two months”, indicating that Powell was threatening to pressure Abigroup Contractors to remove Bull from the Peninsula Link project.

Coercive conduct on 11 November 2010

131.    Stephenson and Powell each engaged in the conduct on 11 November 2010 at the Cranbourne-Frankston Road site and (in Powell’s case) at the Mt Eliza Site as referred to above with intent to coerce Abigroup Contractors to employ particular CFMEU members on Peninsula Link, including the four identified members.

132.    The conduct of each of:

(a)    Doyle on 11 November 2010 at the Lyndhurst Site and the Cranbourne Site;

(b)    MacDonald on 11 November 2010 at the Truganina Site;

(c)    Parker on 11 November 2010 at the Drouin Site; and

(d)    Benstead on 11 November 2010 at the Aitken Site,

was engaged in with intent to coerce Abigroup to employ particular CFMEU members on Peninsula Link, including the four identified members.

133.    For the purposes of s 69(1)(b) of the BCII Act, the conduct of Stephenson, Powell, Doyle, MacDonald, Parker and Benstead on 11 November 2010 as referred to above was the conduct of the CFMEU.

134.    By reason of the matters above, by engaging in the conduct on 11 November 2010:

(a)    Stephenson contravened s 43(1)(a) of the BCII Act;

(b)    Powell contravened s 43(1)(a) of the BCII Act;

(c)    the CFMEU contravened s 43(1)(a) of the BCII Act, in respect of the conduct of Stephenson, Powell, Doyle, MacDonald, Parker and Benstead.

Loss caused by the contraventions

135.    As a result of the:

(a)    Cranbourne-Frankston Road Blockade, from between about 6:30 am to 8:15 am on 31 August 2010, vehicles and deliveries to the Cranbourne-Frankston Road site were prevented from entering the site, causing inconvenience to Abigroup Ltd and Abigroup Contractors; and

(b)    Seaford Compound Blockade, from between about 8:30 am to 9:30 am on 31 August 2010, vehicles and deliveries to the Seaford Compound were prevented from entering the site, causing inconvenience to Abigroup Ltd and Abigroup Contractors.

136.    As a result the direction to not perform any further work given by:

(a)    Stephenson and Powell to employees working on the SLU Project site on 26 October 2010 at about 7:15 am;

(b)    Stephenson and Powell to employees working at the Tooradin Site on 27 October 2010 at about 7:15 am;

(c)    Stephenson and Powell to employees working at the Mt Eliza Site on 27 October 2010 at about 8:30 am;

(d)    Stephenson and Powell to employees working at the Derinya Site on 27 October 2010 at about 9:00 am;

(e)    Stephenson and Powell to employees working at the Dromana Site on 27 October 2010 at about 10:10 am;

(f)    MacDonald to employees working at the Truganina Site on 27 October 2010 at about 7:00 am;

(g)    Doyle to employees working at the Lyndhurst Site on 11 November 2010 at about 6:45 am;

(h)    MacDonald to employees working at the Truganina Site on 11 November 2010 at about 7:00 am;

(i)    Parker to employees working at the Drouin Site on 11 November 2010 at about 7.35 am;

(j)    Benstead to employees working at the Aitken Site on 11 November 2010 at about 8:30 am;

(k)    Powell to employees working at the Mt Eliza Site on 11 November 2010 at about 8:30 am;

(l)    Doyle to employees working at the Cranbourne Site on 11 November 2010 at about 9:30 am;

in relation to each site referred to in subparagraphs 136(a) to (l);

— no further work was performed on the site that day from the time of the direction given (this is save for some nominal work that was performed on some of the sites referred to in subparagraphs 136(a) to (l) on the days in question); and

— there needed to be reorganisation of work on the site for the following day.