FEDERAL COURT OF AUSTRALIA

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 160

THE COURT DECLARES THAT:

On 22 June 2012, each of the respondents contravened s 355 of the Fair Work Act 2009 (Cth) by:

(a)    organising employees of BD Steel Fixing (SA) Pty Ltd to agree not to work until Mr Dominick Lewis was reinstated; and

(b)    threatening that employees of BD Steel Fixing (SA) Pty Ltd would not work until Mr Lewis was reinstated,

with the intention to coerce BD Steel Fixing (SA) Pty Ltd to accede to the demand to reinstate Mr Lewis.

THE COURT ORDERS THAT:

1.    The first respondent is to pay a pecuniary penalty of $16,500.

2.    The second respondent is to pay a pecuniary penalty of $1,320.

3.    The payments in orders 1 and 2 above are to be made to the Commonwealth within 21 days of the date of this order.

4.     The remaining claims of the applicant in the application filed on 11 July 2013 are dismissed.

5.    By consent, there be no order as to costs.

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

REASONS FOR JUDGMENT

1    In these proceedings, the Director of the Fair Work Building Industry Inspectorate (the Director) seeks declarations that each respondent contravened s 355 of the Fair Work Act 2009 (Cth) (FW Act) on 21 and 22 June 2012, and seeks the imposition of penalties in relation to those contraventions. He alleges that the second respondent (Mr McDermott), who is an officer of the first respondent (the CFMEU), threatened to have employees of BD Steel Fixing (SA) Pty Ltd (BDSF) withdraw their labour and that he organised action with the intention of coercing BDSF to employ Dominick Lewis, a CFMEU member.

2    The parties have now reached agreement for the disposition of the proceedings and have filed a Statement of Agreed Facts and Admissions (the Agreed Facts). They are agreed that the Court should make a declaration as follows:

On 22 June 2012, each of the respondents contravened s 355 of the Fair Work Act 2009 (Cth) by:

(a)    organising the BDSF employees to agree not to work until Mr Lewis was reinstated; and

(b)    threatening that the BDSF employees would not work until Mr Lewis was reinstated,

with the intention to coerce BDSF to accede to their demands to reinstate Mr Lewis.

3    The parties join in submitting that the Court should impose penalties of $16,500 and $1,320 on the CFMEU and Mr McDermott respectively in respect of these contraventions.

Section 355

4    Section 355 proscribes certain forms of coercive conduct. It provides:

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

(a)    employ, or not employ, a particular person; or

(b)    engage, or not engage, a particular independent contractor; or

(c)    allocate, or not allocate, particular duties or responsibilities to a particular employee or independent contractor; or

(d)    designate a particular employee or independent contractor as having, or not having, particular duties or responsibilities.

Note:    This section is a civil remedy provision (see Part 4-1).

It is subpar (a) which is relevant presently.

The circumstances of the contraventions

5    On the basis of the Agreed Facts and the submissions of the parties, I make the following findings.

6    The CFMEU is an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth) and, by reason of s 27 of that Act, a body corporate. Mr McDermott is an employee of the CFMEU’s Construction and General Division engaged in its South Australian Divisional Branch. He is also an officer of the CFMEU and, accordingly, conduct by him within the scope of his actual or apparent authority is to be taken to be the conduct of the CFMEU: ss 363 and 793 of the FW Act.

7    In June 2012, Mr Dominick Lewis was a member of the CFMEU. He was employed by BDSF initially as a steel fixer and later as a steel fixer, plan reader and leading hand in the building and construction project being carried out by Hansen Yuncken Pty Ltd at 80 Grenfell Street, Adelaide (the Harris Scarfe Project). In addition, he was the elected Health and Safety Representative (HSR) for the BDSF employees on the site. BDSF terminated Mr Lewis’ employment on 20 June 2012 because of a reduction in the available work at the Harris Scarfe Project. In accordance with the relevant industrial instrument, it gave Mr Lewis 24 hours’ notice.

8    Mr McDermott learned of the termination shortly after it occurred. He formed the view that Mr Lewis had been terminated because he was the BDSF employees’ HSR.

9    At relevant times, Mr Blazevic was the sole director of BDSF and in control of that company. BDSF had been engaged by Hansen Yuncken to provide steel reinforcement services in the Harris Scarfe Project.

10    On 21 June 2012, Mr McDermott telephoned Mr Blazevic and a conversation to the following effect ensued:

(a)    Mr McDermott complained to Mr Blazevic that Mr Lewis had been dismissed because he was the HSR for the BDSF employees.

(b)    Mr Blazevic denied this assertion. He told Mr McDermott that Mr Lewis’ employment had been terminated because of a reduction in the work available on the site and that he had informed his employees some months previously that this would happen.

(c)    Mr McDermott insisted that Mr Lewis had been terminated because he was the HSR for the BDSF employees.

11    On the morning of Friday, 22 June 2012, BDSF employees were scheduled to start work at 7.00am on the Harris Scarfe Project. However, the weather was inclement and they could not commence. Under the provisions of the relevant industrial instrument, when inclement weather precludes work being offered to employees for a period of four hours, they are entitled to leave the site and to be paid for that day’s work. The BDSF employees, about 20 in number, were waiting in the lunch room pending the offer of suitable alternative duties.

12    Earlier that morning, Mr McDermott entered the construction site, having the previous day sent a notice of intention to do so under s 484 of the FW Act. Mr McDermott spoke to Mr Knowles, a site manager employed by Hansen Yuncken. He suggested that Mr Knowles should gather the Safety Committee and carry out a site walk to ascertain dry areas at which the workers could work safely.

13    Later, at about 7.00am, Mr McDermott engaged in the following conduct:

(a)    He organised a meeting of the BDSF employees who were CFMEU members and who were in the lunch room as a result of the inclement weather;

(b)    At that meeting, he proposed that the BDSF employees should not perform work until Mr Lewis was reinstated, using words to the effect that they “should back Dominick up”;

(c)    He told the meeting on two or more occasions that “Dominick had been dismissed the previous day as he was the elected HSR and that the employees should not work until Dominick had got his job back”; and

(d)    He organised a vote, by a show of hands, in which the majority of BDSF employees agreed not to work until Mr Lewis was reinstated.

It is the conduct set out in (b), (c) and (d) which is the subject of the first limb of the agreed declaration.

14    After the meeting, Mr McDermott said to Mr Americo, the Project Manager of Form 700 Pty Ltd which was carrying out form work services on the Harris Scarfe Project, words to the effect:

If the rain clears and all other inclement weather issues are sorted out, the steel fixers will remain in the shed until Dominick gets his job back.

15    Mr McDermott then had a further conversation with Mr Knowles in which he said words to the following effect:

The guys are in the shed at the moment because of rain. If suitable work is offered that is out of the rain and is otherwise safe, the guys will stay in the sheds until Dominick gets his job back.

During the course of this conversation, Mr Knowles requested Mr McDermott to leave the site but Mr McDermott refused, citing his concerns about the health and safety of CFMEU members having regard to the inclement weather.

16    Mr McDermott then telephoned Mr Blazevic and they had a conversation to the following effect:

McDermott:    I just had a talk to the boys and if the rain clears the boys have agreed to put down tools until Dominick gets his job back.

Blazevic:    I can’t give you something that I haven’t got.

McDermott:    You do, I think you can find a job for him on the Project or somewhere else.

Blazevic:    I don’t need that many workers.

17    At about 9.00am on 22 June, Mr McDermott had a conversation with Mr Andreou, Hansen Yuncken’s Construction Manager, to the following effect:

Andreou:    We have maintained a reasonable dialogue in the past and this is inconsistent with what has happened in the past.

McDermott:    Even if all of the inclement weather issues are sorted out, the men aren’t going back until Dominick gets his job back, but I’ll speak to the guys.

Subsequently, Mr McDermott spoke again to Mr Andreou and said words to the effect:

A vote has been taken and my members are going out at lunch time [12 noon].

18    At about 10.15am that day, Mr McDermott telephoned Mr Blazevic a second time and said words to the effect that he should do the right thing and give Mr Lewis his job back. Mr Blazevic responded with words to the effect that he did not have work and that, if he did, there would not be a problem.

19    It is the conduct of Mr McDermott commencing after the meeting of the BDSF employees and concluding with his second telephone call to Mr Blazevic recounted above, to which the second limb of the agreed declaration refers.

20    The BDSF employees at the Harris Scarfe Project remained in the lunch room until 11.00am. Shortly afterwards, they left the site in accordance with the inclement weather provisions contained in the relevant industrial instrument. They did not carry out any work on the site that day. They returned to work as normal on Monday, 25 June 2012.

21    The CFMEU and Mr McDermott admit that Mr McDermott took the action described above with the intention of coercing BDSF to accede to his demand to reinstate Mr Lewis. Mr McDermott acknowledges his contravention of s 355(a) of the FW Act. Having regard to s 363 of the FW Act, the CFMEU acknowledges that it too has contravened s 355(a) by reason of Mr McDermott’s conduct.

22    I consider that the Agreed Facts, together with the matters about which the parties informed me in submissions, do provide a sound basis for the Court’s determination of the appropriate orders in this case.

The imposition of agreed pecuniary penalties

23    Both counsel submitted that it was appropriate for the Court to give effect to the penalties upon which they had agreed. The principles on which this Court acts in relation to the imposition of agreed pecuniary penalties have been discussed in a number of cases and, in particular, in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 and Minister for Industry, Tourism and Resources v Mobil Oil Australia [2004] FCAFC 72. In Mobil Oil, at [51], the Full Court identified the following propositions in the reasons in NW Frozen Foods:

(i)    It is the responsibility of the Court to determine the appropriate penalty to be imposed under s 76 of the [Trade Practices Act 1974 (Cth)] in respect of a contravention of the TP Act.

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

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

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

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

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

24    The Court in Mobil Oil then added a number of further observations, concluding with the following propositions, at [58]:

(i)    The Court, if it considers that the evidence or information before it is inadequate to form a view as to whether the proposed penalty is appropriate, may request the parties to provide additional evidence or information or verify the information provided. If they do not provide the information or verification requested, the Court may well not be satisfied that the proposed penalty is within the range.

(ii)    If the absence of a contradictor inhibits the Court in the performance of its duties under s 76 of the TP Act, s 13 of the Sites Act, or similar legislation, it may seek the assistance of an amicus curiae or of an individual or body prepared to act as an intervenor under FCR, O 6 r 17.

(iii)    If the Court is disposed not to impose the penalty proposed by the parties, it may be appropriate, depending on the circumstances, for each of them to be given the opportunity to withdraw consent to the proposed orders and for the matter to proceed as a contested hearing.

All the authorities emphasise that the Court is not to act as a mere rubber stamp of the parties’ agreement. At [70] in Mobil Oil, the Full Court said:

… The Court must form its own view about the appropriate range of penalties, on the basis of the agreed facts or evidence. If the Court considers that the information supplied by the parties is inadequate, or requires elaboration or verification, it is free to request more detailed information or to ask that the information, or any aspect of it, be verified on oath or affirmation. In the unlikely event of the parties being unwilling to respond to the Court’s request, the Court might well take the view that it is not prepared to act on the agreed material in the manner sought by the parties.

25    In Australian Securities and Investment Commission v Ingleby [2013] VSCA 49; (2013) 275 FLR 171, the Court of Appeal of the Supreme Court of Victoria (Weinberg JA with whom Hargrave AJA agreed and Harper JA agreed on this issue) critiqued the reasoning in NW Frozen Foods and Mobil Oil and expressed the view that they were “wrongly decided” (at [28]-[29], 180; see also [99], 194; [102], 194-5). Middleton J reviewed that critique in Australian Competition and Consumer Commission v AGL Sales Pty Ltd [2013] FCA 1030 but concluded that he should, in the circumstances of that case, be guided by the approach set out in the decisions of the Full Court of this Court.

26    The parties in this case made their submissions on 31 January 2014. On 12 February 2014, while judgment was reserved, the High Court delivered judgment in Barbaro v The Queen [2014] HCA 2. The majority of the Court held in Barbaro that the prosecution should not be permitted to make a submission to a sentencing judge as to the specific penalty, or the range of penalties, which would be appropriate in the case.

27    Although the decision in Barbaro concerned sentencing in the criminal courts, the reasons of the High Court appear also to have relevance to the imposition of civil penalties. They may require this Court to review the approach set out in NW Frozen Foods and Mobil Oil.

28    However, I consider that such a review is neither necessary nor appropriate presently. In the first place, the decisions of the Full Court, even if not strictly binding, are of considerable persuasive value and should, in my opinion, be followed in the circumstances of this case.

29    Secondly, the parties have not made any submissions as to the effect of Barbaro in the present context.

30    Thirdly, the submissions as to the agreed penalties have been made. There are practical difficulties in the submissions being withdrawn. They could be ignored and the parties then given the opportunity to be heard further. However, that is unnecessary because, as will be seen, I consider that penalties of the order proposed by the parties are, in any event, appropriate.

31    This means that the implications of the decision in Barbaro in relation to the imposition of civil penalties need not be addressed presently.

Principles relating to the determination of penalty

32    The relevant principles to be applied in determining the appropriate penalty in a case such as the present are well-settled and need not be rehearsed in these reasons. It is sufficient to refer to Stuart-Mahoney v CFMEU [2008] FCA 1426 at [40]; (2008) 177 IR 61 at 69; Temple v Powell [2008] FCA 714 at [56]-[78]; (2008) 169 FCR 169 at 186-91; and to Cahill v CFMEU (No 4) [2009] FCA 1040 at [9]-[10]; (2009) 189 IR 304 at 308. It is, however, pertinent to note that courts now tend to regard contraventions of industrial laws more seriously than may have been the case generally in the past: Finance Sector Union v Commonwealth Bank of Australia [2005] FCA 1847 at [72]; (2005) 224 ALR 467 at 487; Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2008] FCAFC 170 at [61]-[62]; (2008) 171 FCR 357 at 376-7.

33    The matters to which the Court may have regard in assessing penalty include:

(a)    The nature and extent of the conduct which led to the breaches.

(b)    The circumstances in which that relevant conduct took place.

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

(d)    Whether there has been similar previous conduct by the respondent.

(e)    Whether the breaches were properly distinct or arose out of the one course of conduct.

(f)    The size of the business enterprise involved.

(g)    Whether or not the breaches were deliberate.

(h)    Whether senior management was involved in the breaches.

(i)    Whether the party committing the breach has exhibited contrition.

(j)    Whether the party committing the breach has taken corrective action.

(k)    Whether the party committing the breach has cooperated with the enforcement authorities.

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

(m)    The need for specific and general deterrence.

Several of these matters are pertinent in the present case.

Consideration

34    The maximum penalty for a contravention of s 355 is 300 penalty units for a body corporate and 60 penalty units for an individual: ss 539(2) and 546(2) of the FW Act. A penalty unit at 22 June 2012 was $110: s 4AA(1) of the Crimes Act 1914 (Cth). Accordingly, the maximum penalty for the contravention of s 355 in the case of the CFMEU is $33,000 and, in the case of Mr McDermott, $6,600.

35    The penalty proposed by the parties in the case of the CFMEU is, accordingly, 50% of the maximum and, in the case of Mr McDermott, 20% of the maximum.

36    Although Mr McDermott’s conduct comprised different elements, he has, appropriately, been charged with a single contravention of s 355. All of the elements occurred on the one day and within the space of a few hours. They were of a similar kind and had a single focus, namely, the reinstatement of Mr Lewis.

37    The conduct was of a serious kind, involving the foreshadowed withdrawal of work by about 20 employees unless BDSF acceded to Mr McDermott’s demand. It was common ground that BDSF was the only steel fixing sub-contractor on the Harris Scarfe Project so that the withdrawal of their labour would have meant that no steel fixing work could be carried out. Mr McDermott’s conduct had the potential, therefore, to cause significant disruption to the performance of work.

38    However, because of the continuing inclement weather, and the absence of suitable alternative duties, Mr McDermott’s conduct did not have a practical effect. The BDSF employees did not actually withdraw their labour to support Mr McDermott’s demand. No work hours were lost because of his action.

39    I take into account the Director’s acknowledgement that Mr McDermott had a genuine belief that Mr Lewis had been terminated because he was the HSR for the BDSF employees. His conduct was prompted by that belief. Accordingly, the contravention is not aggravated by the circumstance that it had as its object some more sinister purpose.

40    I also accept the respondents’ submission that Mr McDermott’s conduct appears to have been of an ad hoc kind rather than forming part of a premeditated and carefully planned strategy.

41    Section 355 was enacted as part of the FW Act and came into operation on 1 July 2009. However, the former Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) contained in s 43 a relevantly identical provision. The subject matter of ss 355 and 43 is the proscription of coercive conducted directed to the employment or non-employment of particular employees or independent contractors or directed to the work and designation of particular employees and independent contractors.

42    This is the first occasion on which the CFMEU has been dealt with by a court for a contravention of s 355. However, between 2008 and 2012 (and before the present contravention), the CFMEU was dealt with by courts on at least seven separate occasions involving, in all, 15 breaches, for contraventions of s 43 of the BCII Act. In the same period, its officers and employees were also dealt with for numerous contraventions of s 43.

43    This is a significant record of engagement by the CFMEU in conduct of the kind proscribed by s 355.

44    In addition, between 2000 and 2013, the CFMEU has been dealt with by courts on a further 19 occasions for contraventions of provisions in industrial legislation proscribing other forms of coercive conduct. For example, the CFMEU has admitted numerous contraventions of s 44 of the BCII Act, which proscribed taking or threatening to take action with the intent to coerce a person to agree to make, vary or terminate a building enterprise agreement (Wilson v Nesbit [2009] FCA 1574; (2009) 195 IR 399; Stuart v CFMEU [2010] FCAFC 65; (2010) 185 FCR 308; Alfred v CFMEU [2011] FCA 556). It has been dealt with for contravening s 289P of the Workplace Relations Act 1996 (Cth), by taking or threatening to take action to coerce an employer to dismiss or otherwise prejudice an employee because of the employee’s refusal to join a union (CFMEU v Hamberger [2003] FCAFC 38; (2003) 127 FCR 309), and s 187AB the Workplace Relations Act 1996 (Cth), by engaging in or threatening to engage in industrial action to coerce an employer to make a payment to an employee in relation to a period in which the employee engaged in industrial action (Cruse v Multiplex Ltd [2008] FCAFC 179; (2008) 172 FCR 279). Each of those contraventions occurred before the conduct in the present case.

45    Further still, the CFMEU has been dealt with on numerous occasions for contraventions of provisions in industrial legislation which do not involve coercive conduct. It is not necessary presently to detail those contraventions.

46    Both parties made a number of submissions as to the significance of the history of contraventions by the CFMEU. Those submissions went principally to two issues: whether regard should be had only to the CFMEU’s previous contraventions which were of a like kind to the present; and whether any regard could be had to contraventions by divisions other than the South Australian Divisional Branch of the CFMEU. In many respects, the first issue does not arise in a practical way in the present case because, even if regard is had only to the CFMEU’s contraventions of s 43 of the former BCII Act, its antecedent history must be regarded as significant.

47    It is appropriate to commence consideration of the parties’ submissions by reference to matters of underlying principle. The general principle relating to the relevance of prior offences to the fixing of sentences for criminal offences was stated by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-8:

… [T]he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: … The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.

(Citation omitted)

48    In R v McInerney (1986) 42 SASR 111, King CJ explained the ways in which previous offending may be relevant in the sentencing process (at 113):

… Offences committed prior to sentence for the offence under consideration may affect the sentence in two ways. They may diminish or abrogate any leniency by reason of good character. They may, moreover, lead to a greater sentence than would otherwise be imposed, although within the proper limits indicated by the facts of the immediate crime, for the purpose of personal deterrence; the prisoner’s record may indicate that greater punishment is needed to protect the public by deterring him from further crime. Where the other offences have been committed before the commission of the immediate offence, their relevance is clear in the generality of cases. The offender has committed the offence not as a first offender but as a person whose character is affected by previous offending. He must be sentenced against the background of his record … The effect of the prior offences is more cogent if they have been the subject of conviction before the immediate offence. In such cases, the offender has committed the immediate offence notwithstanding the formal judgment and condemnation of the law in respect of the earlier offences and notwithstanding the warning as to the future which the conviction experience implies.

49    In Ryan v The Queen [2001] HCA 21 at [67]; (2001) 206 CLR 267 at 287-8, Gummow J cited this passage in McInerney when stating that, whilst “good character” may operate in mitigation, “bad character” cannot operate in aggravation because a person is not to be punished, or punished again, for crimes other than that for which sentencing is passed.

50    The High Court again addressed the significance of a previous record in the sentencing process in Weininger v The Queen [2003] HCA 14 at [32]; (2003) 212 CLR 629 at 640. The plurality said:

… A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offender for the offences admitted but not charged. It is to do no more than give effect to the well-established principle (in this case established by statute) that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender's known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration.

(Emphasis added)

51    These principles, although developed in relation to the sentencing of criminal offences, are apposite to the fixation of penalties for contraventions of the present kind. Rehabilitation, which is an element in criminal sentencing, may have no part in fixing the pecuniary penalty for a civil contravention (Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 51,152) but, nevertheless, the principles are appropriate.

52    Not all prior offending will be relevant, or relevant in the same way, to the sentencing. Much will depend on the nature of the prior offending, the time when the prior offending occurred and, in limited cases, the circumstances in which it occurred. Ordinarily, previous offending of a generally similar kind will be particularly relevant, but even conduct of that kind may lose some or all of its significance if it occurred at a time well-distant from the current offending.

53    Even when the previous offending involved conduct of a different character, it may still be relevant to sentencing. Depending upon the circumstances, a history of previous convictions may indicate an attitude of defiance of, or indifference to, compliance with the law. In either case, considerations of personal deterrence will usually be important in the sentencing process. Obviously enough, a history of prior offences will usually preclude lenience being extended to an offender by reason that the offence under consideration is a single and isolated incursion into criminal behaviour.

54    Like Jessup J in Williams v CFMEU (No 2) [2009] FCA 548 at [16]; (2009) 182 IR 327 at 335, I consider that there is no reason why previous contraventions which are otherwise relevant should be excluded from consideration simply because they arose under legislation different from that presently before the Court. What is important is the quality of the conduct in each case and its relevance to the norms of industrial behaviour which the current legislation seeks to establish or support.

55    Even if regard is had in the present case only to the previous contraventions of s 43 of the former BCII Act, the CFMEU has a significant antecedent history. I indicate, however, that I also consider it to be appropriate to have regard to the CFMEU’s history of contraventions of other provisions in industrial legislation proscribing forms of coercive conduct. In those circumstances, it is unnecessary to express a concluded view about the relevance of the other aspects of the CFMEU’s antecedent history.

56    The CFMEU’s history and the nature of its present contravention indicate that deterrence, both general and specific, should be a significant consideration in the fixation of an appropriate penalty. The CFMEU is not, of course, to be punished again for its previous contraventions but its history does mean that it is not entitled to any leniency by reason of a previous good record, or by reason of a history of attempting to comply with provisions such as s 355. The penalty is to be fixed in the context of the CFMEU’s previous record.

57    The respondents referred to authority indicating that contraventions by a different branch of the CFMEU are of no or less weight than contraventions within the same branch: Australian Building and Construction Commissioner v CFMEU (No 2) [2010] FCA 977 at [48(11)]-[49]; (2010) 199 IR 373 at 383; Temple v Powell [2008] FCA 714 at [63]; (2008) 169 FCR 169 at 188; Leighton Contractors Pty Ltd v CFMEU [2006] WASC 317 at [67]; (2006) 164 IR 375 at 390. However, there is authority to the contrary: Williams v CFMEU (No 2) [2009] FCA 548 at [18]-[25]; (2009) 182 IR 327 at 336-8; Woodside Burrup Pty Ltd v CFMEU [2011] FCA 949 at [61]-[64]; (2011) 209 IR 302 at 315-6; CFMEU v John Holland Pty Ltd [2010] FCAFC 90 at [143]; (2010) 186 FCR 88 at 128; and I note that, in Draffin v CFMEU [2009] FCAFC 120 at [72]; (2009) 189 IR 145 at 154-5, the Full Court doubted, but did not decide, the correctness of the CFMEU’s submission that contraventions by its branches in States other than Victoria ought not to be taken into account.

58    I favour the latter view. I do not consider it correct in principle that a previous contravention by an organisation which is otherwise relevant should be ignored altogether when fixing penalty, or be given less weight, only because it occurred in another State and by a different branch of the organisation. That is not to preclude the possibility that the evidence in a given case may suggest a proper reason for regarding a contravention committed within another branch as being of no, or less, relevance. That evidence may, for example, relate to the way in which the entity organises itself so as to make each branch autonomous, or indicate that the behaviour of one branch may be regarded as atypical of the organisation. There may be other possibilities, but such cases are unlikely to be commonplace.

59    In the present case, the respondents did not present any evidence of this kind. Accordingly, although I accept their submission that none of the contraventions of the CFMEU of s 43 of the BCII Act or of the other industrial provisions proscribing coercive conduct have occurred in South Australia, I do not regard that as diminishing the significance to be attached to the CFMEU’s antecedent history.

60    Mr McDermott’s position is different. As at June 2012, he had been employed by the CFMEU for over five and a half years. It is to his credit that he has no prior contraventions of industrial laws.

61    It is also to the respondents’ credit that they have conceded liability and agreed on facts and penalty: Draffin v CFMEU [2009] FCAFC 120 at [95]. By their acknowledgement of their respective contraventions, the respondents have avoided the time and expense of a trial. Further, they participated in a protracted mediation which, although not producing immediately a negotiated result, did assist in the resolution of the action. I accept that this is an indication of willingness on their part to facilitate the course of justice. At the same time, I note that both the CFMEU and Mr McDermott filed defences in this Court on 23 August 2013 in which they denied the contraventions, so that it cannot be said that their acknowledgements were made at the first reasonable opportunity.

62    Neither respondent has made any expression of contrition or regret. The Court was not told of any apology having been extended to Mr Blazevic. Nor was the Court told of any procedures put in place by the CFMEU to prevent a recurrence of such conduct.

63    The Court is required to take into account all these factors. Having done so, I consider that the penalties proposed by the parties can be regarded as appropriate. Had it not been for the matters for which the respondents are to be given credit, higher penalties, particularly in the case of the CFMEU, may have been appropriate. It is also appropriate that the penalty to be imposed on the CFMEU itself be a higher proportion of the applicable maximum than in the case of Mr McDermott, having regard to its prior history. Accordingly, they are the penalties which I impose.

Declarations

64    I am satisfied that it is appropriate to make declarations in the form proposed by the parties, albeit with some minor amendments.

65    I note that the Director no longer seeks any declaration with respect to the alleged conduct of Mr McDermott on 21 June 2012. That aspect of the application should be dismissed.

Conclusion

66    For the reasons given above, I make the following declaration:

On 22 June 2012, each of the respondents contravened s 355 of the Fair Work Act 2009 (Cth) by:

(a)    organising the BDSF employees to agree not to work until Mr Lewis was reinstated; and

(b)    threatening that the BDSF employees would not work until Mr Lewis was reinstated,

with the intention to coerce BDSF to accede to their demands to reinstate Mr Lewis;

and I make the following orders:

(c)    The first respondent is to pay a pecuniary penalty of $16,500.

(d)    The second respondent is to pay a pecuniary penalty of $1,320.

(e)    Those payments are to be made to the Commonwealth within 21 days of the date of this order.

(f)    The remaining claims of the applicant in the application filed on 11 July 2013 are dismissed.

(g)    By consent, there be no order as to costs.

Associate:

Dated:    5 March 2014