FEDERAL COURT OF AUSTRALIA

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413

ORDERS

THE COURT DECLARES THAT:

Flinders University site

1.    The Second Respondent, Mark Gava, contravened s 500 of the Fair Work Act 2009 (Cth) (the FW Act) on 30 October 2013 by acting in an improper manner while seeking to exercise rights in accordance with Pt 3-4 of the FW Act, by failing to provide a notice of entry as required by s 487 of the FW Act in order to enter the Flinders University project at Tonsley Park (the Flinders University Site), and by then remaining on the site for about one hour and 40 minutes after he was asked to leave by a representative of Lend Lease Building Contractors Pty Ltd (Lend Lease), the head contractor and occupier of the premises, and by holding discussions with workers during that time.

2.    By reason of s 793 of the FW Act, the First Respondent, the Construction, Forestry, Mining and Energy Union (the CFMEU), contravened s 500 of the FW Act by the conduct of Mr Gava constituting the contravention subject of the first declaration herein.

3.    The Third Respondent, Mohammed Kalem, contravened s 500 of the FW Act on 30 October 2013 by acting in an improper manner while seeking to exercise rights in accordance with Pt 3-4 of the FW Act, by failing to provide a notice of entry as required by s 487 of the FW Act in order to enter the Flinders University Site, and by then remaining on the site for about an hour and 40 minutes, and by distracting workers by speaking to them as they worked.

4.    By reason of s 793 of the FW Act, the CFMEU contravened s 500 of the FW Act by the conduct of Mr Kalem constituting the contravention the subject of the third declaration herein.

5.    The Fourth Respondent, John Lomax, contravened s 500 of the FW Act on 30 October 2013 by acting in an improper manner while seeking to exercise rights in accordance with Pt 3-4 of the FW Act, by failing to provide a notice of entry as required by s 487 of the FW Act in order to enter the Flinders University Site, and by then remaining on site for about an hour and 40 minutes, and by distracting workers by speaking to them as they worked.

6.    By reason of s 793 of the FW Act, the CFMEU contravened s 500 of the FW Act by the conduct of Mr Lomax constituting the contravention the subject of the fifth declaration herein.

7.    Mark Gava contravened s 348 of the FW Act on 30 October 2013 at the Flinders University Site by threatening to organise, or take, action against Lend Lease, by his conduct in threatening to cause work on the site to be stopped, with the intention of coercing Lend Lease to engage in industrial activity pursuant to s 347(b)(v) of the FW Act, namely, to fly the flag of the CFMEU on the crane hook at the site.

8.    By reason of s 793 of the FW Act, the CFMEU contravened s 348 of the FW Act by the conduct of Mr Gava constituting the contravention the subject of the seventh declaration herein.

9.    Mohammed Kalem contravened s 348 of the FW Act on 30 October 2013 at the Flinders University Site by threatening to organise, or take, action against Lend Lease, by his conduct in threatening to cause work on the site to be stopped with the intention of coercing Lend Lease to engage in industrial activity pursuant to s 347(b)(v) of the FW Act, namely to fly the flag of the CFMEU on the crane hook at the site.

10.    By reason of s 793 of the FW Act, the CFMEU contravened s 348 of the FW Act by the conduct of Mr Kalem constituting the contravention the subject of the ninth declaration herein.

11.    John Lomax was knowingly concerned in the contraventions of s 348 of the FW Act on 30 October 2013 by Mr Gava and Mr Kalem which are the subject of the seventh and ninth declarations herein and thereby, by virtue of s 550 of the FW Act, himself contravened s 348.

12.    By reason of s 793 of the FW At, the CFMEU contravened s 348 of the FW Act by the conduct of Mr Lomax constituting the contravention the subject of the 11th declaration herein.

13.    Mohammed Kalem was knowingly concerned in the contravention of s 348 of the FW Act by Mr Gava which is the subject of the seventh declaration herein and thereby, by virtue of s 550 of the FW Act, himself contravened s 348.

14.    By reason of s 793 of the FW Act, the CFMEU contravened s 348 of the FW Act by the conduct of Mr Kalem constituting the contravention the subject of the 13th declaration herein.

TAFE site

15.    The Second Respondent, Mark Gava, contravened s 500 of the FW Act on 30 October 2013 by acting in an improper manner while seeking to exercise rights in accordance with Pt 3-4 of the FW Act, by twice failing to provide a notice of entry as required by s 487 of the FW Act in order to enter the TAFE project at Tonsley Park Site (the TAFE Site), and by remaining on the TAFE Site after he was asked to comply with the s 487 requirements by a representative of Lend Lease, the head contractor and occupier of the TAFE Site, and by holding discussions with workers on the site.

16.    By reason of s 793 of the FW Act, the CFMEU contravened s 500 of the FW Act by the conduct of Mr Gava constituting the contravention the subject of the 15th declaration herein.

Convention Centre site

17.    The Fifth Respondent, James O’Connor, contravened s 500 of the FW Act on 30 October 2013 by acting in an improper manner while seeking to exercise rights in accordance with Pt 3-4 of the FW Act, by failing to provide a notice of entry as required by s 487 of the FW Act in order to enter the Convention Centre Redevelopment on North Terrace, Adelaide (the Convention Centre Site), by insisting on remaining on the Convention Centre Site after he was asked to comply with the s 487 requirements by a representative of Lend Lease, the head contractor and occupier of the Convention Centre Site, and by holding discussions with workers on the site as they worked and not only in places agreed by Lend Lease, and not only during the workers’ breaks.

18.    By reason of s 793 of the FW Act, the CFMEU contravened s 500 of the FW Act by the conduct of Mr O’Connor constituting the contravention the subject of the 17th declaration herein.

19.    The Sixth Respondent, Bill Beattie, contravened s 500 of the FW Act on 30 October 2013 by acting in an improper manner while seeking to exercise rights in accordance with Pt 3-4 of the FW Act, by failing to provide a notice of entry as required by s 487 of the FW Act in order to enter the Convention Centre Site, by insisting on remaining on the Convention Centre Site after he was asked to comply with the s 487 requirements by a representative of Lend Lease, the head contractor and occupier of the Convention Centre Site, and by holding discussions with workers on the site as they worked and not only in places agreed by Lend Lease, and not only during the workers’ breaks.

20.    By reason of s 793 of the FW Act, the CFMEU contravened s 500 of the FW Act by the conduct of Mr Beattie constituting the contravention the subject of the 19th declaration herein.

Adelaide Oval site: 30 October 2013

21.    The Seventh Respondent, Michael McDermott, contravened s 500 of the FW Act on 30 October 2013 by acting in an improper manner while seeking to exercise rights in accordance with Pt 3-4 of the FW Act, by failing to provide a notice of entry as required by s 487 of the FW Act in order to enter the Adelaide Oval Redevelopment Site (the Adelaide Oval Site), and by remaining on the site and holding discussions with workers.

22.    By reason of s 793 of the FW Act, the CFMEU contravened s 500 of the FW Act by the conduct of Mr McDermott constituting the contravention the subject of the 21st declaration herein.

23.    The Eighth Respondent, Stephen Long, contravened s 500 of the FW Act on 30 October 2013 by acting in an improper manner while seeking to exercise rights in accordance with Pt 3-4 of the FW Act, by failing to provide a notice of entry as required by s 487 of the FW Act in order to enter the Adelaide Oval Site, and by remaining on the site and holding discussions with workers.

24.    By reason of s 793 of the FW Act, the CFMEU contravened s 500 of the FW Act by the conduct of Mr Long constituting the contravention the subject of the 23rd declaration herein.

25.    The Ninth Respondent, Brett Harrison, contravened s 500 of the FW Act on 30 October 2013 by acting in an improper manner while seeking to exercise rights in accordance with Pt 3-4 of the FW Act, by failing to provide a notice of entry as required by s 487 of the FW Act in order to enter the Adelaide Oval Site, and by remaining on the site and holding discussions with workers.

26.    By reason of s 793 of the FW Act, the CFMEU contravened s 500 of the FW Act by the conduct of Mr Harrison constituting the contravention the subject of the 25th declaration herein.

27.    The Tenth Respondent, Darren Roberts, contravened s 500 of the FW Act on 30 October 2013 by acting in an improper manner while seeking to exercise rights in accordance with Pt 3-4 of the FW Act, by:

(a)    failing to provide a notice of entry as required by s 487 of the FW Act in order to enter the Adelaide Oval Site, and by remaining on the site and holding discussion with workers; and

(b)    speaking in an aggressive, loud, rude and threatening manner to the Site Operations Manager.

28.    By reason of s 793 of the FW Act, the CFMEU contravened s 500 of the FW Act by the conduct of Mr Roberts constituting the contravention the subject of the 27th declaration herein.

29.    The Eleventh Respondent, Luke Stephenson, contravened s 500 of the FW Act on 30 October 2013 by acting in an improper manner while seeking to exercise rights in accordance with Pt 3-4 of the FW Act, by failing to provide a notice of entry as required by s 487 of the FW Act in order to enter the Adelaide Oval Site, and by remaining on the site and holding discussions with workers.

30.    By reason of s 793 of the FW Act, the CFMEU contravened s 500 of the FW Act by the conduct of Mr Stephenson constituting the contravention the subject of the 29th declaration herein.

Adelaide Oval site: 31 October 2013

31.    The Sixth Respondent, Bill Beattie, contravened s 500 of the FW Act on 31 October 2013 by acting in an improper manner while seeking to exercise rights in accordance with Pt 3-4 of the FW Act at the Adelaide Oval site, by failing to provide a notice of entry as required by s 487 of the FW Act, and by remaining on the site and holding discussions with workers on the site.

32.    By reason of s 793 of the FW Act, the CFMEU contravened s 500 of the FW Act by the conduct of Mr Beattie constituting the contravention the subject of the 31st declaration herein.

33.    The Seventh Respondent, Michael McDermott, contravened s 500 of the FW Act on 31 October 2013 by acting in an improper manner while seeking to exercise rights in accordance with Pt 3-4 of the FW Act at the Adelaide Oval site, by failing to provide a notice of entry as required by s 487 of the FW Act, by entering and remaining on site after permission had been refused, by holding discussions with workers, and by failing to comply with the reasonable directions of the Lend Lease representative escorting him on the site.

34.    By reason of s 793 of the FW Act, the CFMEU contravened s 500 of the FW Act by the conduct of Mr McDermott constituting the contravention the subject of the 33rd declaration herein.

35.    The Eighth Respondent, Stephen Long, contravened s 500 of the FW Act on 31 October 2013 by acting in an improper manner while seeking to exercise rights in accordance with Pt 3-4 of the FW Act at the Adelaide Oval site, by failing to provide a notice of entry as required by s 487 of the FW Act, by remaining on the site and holding discussions with workers on the site.

36.    By reason of s 793 of the FW Act, the CFMEU contravened s 500 of the FW Act by the conduct of Mr Long constituting the contravention the subject of the 35th declaration herein.

Adelaide Oval site: 12 November 2013

37.    The Seventh Respondent, Michael McDermott, contravened s 500 of the FW Act on 12 November 2013 by acting in an improper manner while seeking to exercise rights in accordance with Pt 3-4 of the FW Act at the Adelaide Oval site, by failing to provide a notice of entry as required by s 487 of the FW Act, by entering and remaining on site after he was asked to leave by a representative of Lend Lease, the head contractor and occupier of the Adelaide Oval Site, and by holding discussions with workers on the site.

38.    By reason of s 793 of the FW Act, the CFMEU contravened s 500 of the FW Act by the conduct of Mr McDermott constituting the contravention the subject of the 37th declaration herein.

39.    The Eleventh Respondent, Luke Stephenson, contravened s 500 of the FW Act on 12 November 2013 by acting in an improper manner while seeking to exercise rights in accordance with Pt 3-4 of the FW Act at the Adelaide Oval site, by failing to provide a notice of entry as required by s 487 of the FW Act, by entering and remaining on site after he was asked to leave by a representative of Lend Lease, the head contractor and occupier of the Adelaide Oval Site, and by holding discussions with workers on the site.

40.    By reason of s 793 of the FW Act, the CFMEU contravened s 500 of the FW Act by the conduct of Mr Stephenson constituting the contravention the subject of the 39th declaration herein.

Adelaide Oval site: 13 November 2013

41.    The Seventh Respondent, Michael McDermott, contravened s 499 of the FW Act on 13 November 2013 while entering the Adelaide Oval Site in the exercise of rights under s 117 of the Work Health and Safety Act 2002 (SA) by failing to comply with a reasonable request from the occupier of the site to comply with an occupational health and safety requirement, namely, to remain outside an area marked with a sign and bunting as an exclusion zone.

42.    By reason of s 793 of the FW Act, the CFMEU contravened s 499 of the FW Act by the conduct of Mr McDermott constituting the contravention the subject of the 41st declaration herein.

THE COURT ORDERS THAT:

Flinders University site

43.    The Second Respondent, Mr Gava, pay a pecuniary penalty of $1,400 in respect of the contravention of s 500 which is the subject of the first declaration herein.

44.    The First Respondent, the CFMEU, pay a pecuniary penalty of $22,500 in respect of the contravention of s 500 which is the subject of the second declaration herein.

45.    The Third Respondent, Mr Kalem, pay a pecuniary penalty of $1,500 in respect of the contravention of s 500 which is the subject of the third declaration herein.

46.    The CFMEU pay a pecuniary penalty of $25,000 in respect of the contravention of s 500 which is the subject of the fourth declaration herein.

47.    The Fourth Respondent, Mr Lomax, pay a pecuniary penalty of $1,500 in respect of the contravention of s 500 which is the subject of the fifth declaration herein.

48.    The CFMEU pay a pecuniary penalty of $25,000 in respect of the the contravention of s 500 which is the subject of the sixth declaration herein.

49.    Mr Gava pay a pecuniary penalty of $1,400 in respect of the contravention of s 348 which is the subject of the seventh declaration herein.

50.    The CFMEU pay a pecuniary penalty of $22,500 for the contravention of s 348 which is the subject of the eighth declaration herein.

51.    Mr Kalem pay a pecuniary penalty of $1,500 in respect of the contravention of s 348 which is the subject of the ninth declaration herein.

52.    The CFMEU pay a pecuniary penalty of $25,000 for the contravention of s 500 which is the subject of the 10th declaration herein.

53.    Mr Lomax pay a pecuniary penalty of $1,500 in respect of the contravention of s 348 which is the subject of the 11th declaration herein.

54.    The CFMEU pay a pecuniary penalty of $25,000 in respect of the contravention of s 348 which is the subject of the 12th declaration herein.

55.    Mr Kalem pay a pecuniary penalty of $750 in respect of the contravention of s 348 which is the subject of the 13th declaration herein.

56.    The CFMEU pay a pecuniary penalty of $12,500 in respect of the contravention of s 348 which is the subject of the 14th declaration herein.

TAFE site

57.    The Second Respondent, Mr Gava, pay a pecuniary penalty of $1,000 in respect of the contravention of s 500 which is the subject of the 15th declaration herein.

58.    The First Respondent, the CFMEU, pay a pecuniary penalty of $20,000 in respect of the contravention of s 500 which is the subject of the 16th declaration herein.

Convention Centre site

59.    The Fifth Respondent, Mr O’Connor, pay a pecuniary penalty of $1,800 in respect of the contravention of s 500 which is the subject of the 17th declaration herein.

60.    The First Respondent, the CFMEU, pay a pecuniary penalty of $23,000 in respect of the contravention of s 500 which is the subject of the 18th declaration herein.

61.    The Sixth Respondent, Mr Beattie, pay a pecuniary penalty of $2,800 in respect of the contravention of s 500 which is the subject of the 19th declaration herein.

62.    The CFMEU pay a pecuniary penalty of $23,000 in respect of the contravention of s 500 which is the subject of the 20th declaration herein.

Adelaide Oval site: 30 October 2013

63.    The Seventh Respondent, Mr McDermott, pay a pecuniary penalty of $3,300 in respect of the contravention of s 500 on 30 October 2013 which is the subject of the 21st declaration herein.

64.    The First Respondent, the CFMEU, pay a pecuniary penalty of $22,500 in respect of the contravention of s 500 on 30 October 2013 which is the subject of the 22nd declaration herein.

65.    The Eighth Respondent, Mr Long, pay a pecuniary penalty of $2,200 in respect of the contravention of s 500 on 30 October 2013 which is the subject of the 23rd declaration herein.

66.    The CFMEU pay a pecuniary penalty of $25,000 in respect of the contravention of s 500 on 30 October 2013 which is the subject of the 24th declaration herein.

67.    The Ninth Respondent, Mr Harrison, pay a pecuniary penalty of $1,200 in respect of the contravention of s 500 on 30 October 2013 which is the subject of the 25th declaration herein.

68.    The CFMEU pay a pecuniary penalty of $25,000 in respect of the contravention of s 500 on 30 October 2013 which is the subject of the 26th declaration herein.

69.    The Tenth Respondent, Mr Roberts, pay a pecuniary penalty of $2,200 in respect of the contravention of s 500 on 30 October 2013 which is the subject of the 27th declaration herein.

70.    The CFMEU pay a pecuniary penalty of $22,500 in respect of the contravention of s 500 on 30 October 2013 which is the subject of the 28th declaration herein.

71.    The Eleventh Respondent, Mr Stephenson, pay a pecuniary penalty of $1,500 in respect of the contravention of s 500 on 30 October 2013 which is the subject of the 29th declaration herein.

72.    The CFMEU pay a pecuniary penalty of $20,000 in respect of the contravention of s 500 on 30 October 2013 which is the subject of the 30th declaration herein.

Adelaide Oval site: 31 October 2013

73.    The Sixth Respondent, Mr Beattie, pay a pecuniary penalty of $2,500 in respect of the contravention of s 500 on 31 October 2013 which is the subject of the 31st declaration herein.

74.    The First Respondent, the CFMEU, pay a pecuniary penalty of $25,000 in respect of the contravention of s 500 on 31 October 2013 which is the subject of the 32nd declaration herein.

75.    The Seventh Respondent, Mr McDermott, pay a pecuniary penalty of $3,400 in respect of the contravention of s 500 on 31 October 2013 which is the subject of the 33rd declaration herein.

76.    The CFMEU pay a pecuniary penalty of $25,000 for the contravention of s 500 on 31 October 2013 which is the subject of the 34th declaration herein.

77.    The Eighth Respondent, Mr Long, pay a pecuniary penalty of $2,200 in respect of the contravention of s 500 on 31 October 2013 which is the subject of the 35th declaration herein.

78.    The CFMEU pay a pecuniary penalty of $25,000 in respect of the contravention of s 500 on 31 October 2013 which is the subject of the 36th declaration herein.

Adelaide Oval site: 12 November 2013

79.    The Seventh Respondent, Mr McDermott, pay a pecuniary penalty of $2,000 in respect of the contravention of s 500 on 12 November 2013 which is the subject of the 37th declaration herein.

80.    The First Respondent, the CFMEU, pay a pecuniary penalty of $22,500 in respect of the contravention of s 500 on 12 November 2013 which is the subject of the 38th declaration herein.

81.    The Eleventh Respondent, Mr Stephenson, pay a pecuniary penalty of $1,500 in respect of the contravention of s 500 on 12 November 2013 which is the subject of the 39th declaration herein.

82.    The CFMEU pay a pecuniary penalty of $15,000 in respect of the contravention of s 500 on 12 November 2013 which is the subject of the 40th declaration herein.

Adelaide Oval site: 13 November 2013

83.    The Seventh Respondent, Mr McDermott, pay a pecuniary penalty of $1,000 in respect of the contravention of s 499 on 13 November 2013 which is the subject of the 41st declaration herein.

84.    The First Respondent, the CFMEU, pay a pecuniary penalty of $5,000 in respect of the contravention of s 499 on 13 November 2013 which is the subject of the 42nd declaration herein.

THE COURT FURTHER ORDERS THAT:

85.    Pursuant to s 546(3) of the FW Act, each of the pecuniary penalties is to be paid to the Commonwealth of Australia.

86.    The allegations that the First, Second, Third and Fourth Respondents contravened s 346 of the FW Act at the Flinders University site on 30 October 2013 are dismissed.

87.    The allegation that the Twelfth Respondent contravened of s 500 of the FW Act at the Adelaide Oval site on 30 October 2013 is dismissed.

88.    The allegation that the Seventh Respondent, by the operation of s 550 of the FW Act, contravened s 500 of the FW Act at the Adelaide Oval site on 12 November 2013 is dismissed.

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

REASONS FOR JUDGMENT

WHITE J:

1    In 2015, the Court conducted separate hearings in three sets of proceedings in which the applicant (the Director) alleged multiple contraventions by the Construction, Forestry, Mining and Energy Union (the CFMEU) and its officials of provisions in the Fair Work Act 2009 (Cth) (the FW Act). The principal allegation in each of the three sets of proceedings was that CFMEU officials had engaged in improper conduct in the exercise of rights of entry onto buildings sites, in contravention of s 500 of the FW Act.

2    The first trial, in Action SAD 219/2014, concerned the conduct of the second and third respondents (Mr Stephenson and Mr Cartledge) at the South Australian Health and Medical Research Institute site on North Terrace, Adelaide (the SAHMRI Site) on 11 November 2013 and the conduct of the fourth respondent (Mr Kirner) at the same site on 22 November 2013. The Court’s judgment on the liability aspects is DFWBII v CFMEU [2015] FCA 1287 (the SAHMRI Site Liability Judgment). I found all of the Director’s allegations to be established.

3    The second trial was in these proceedings, Action SAD 300/2014. It concerned the conduct of 11 officials of the CFMEU at one or more of four Lend Lease Building Contractors Pty Ltd building sites in and around Adelaide in October and November 2013. The Court’s judgment on the liability aspects in that matter is DFWBII v CFMEU [2015] FCA 1293 (the Liability Judgment). I found most, but not all, of the Director’s allegations to be established.

4    The individual respondents to this Action are Mark Gava (the second respondent), Muhammed Kalem (the third respondent), John Lomax (the fourth respondent), James O’Connor (the fifth respondent), Bill Beattie (the sixth respondent), Michael McDermott (the seventh respondent), Stephen Long (the eighth respondent), Brett Harrison (the ninth respondent), Darren Roberts (the tenth respondent), Luke Stephenson (the eleventh respondent) and David Kirner (the twelfth respondent). I held that the Director’s allegations concerning Mr Kirner in this action were not established, that the contraventions of s 346 by Mr Kalem and Mr Lomax at the Flinders University site on 30 October 2013 were not established, but otherwise found the charged contraventions proved.

5    The third set of proceedings concerned the conduct of seven officials of the CFMEU at one or more of five construction sites in Adelaide in March, April and May 2014. This set of proceedings comprised five separate actions: Actions SAD 302/2014, 303/2014, 304/2014, 305/2014 and 306/2014.

6    In Action SAD 305/2014, the respondents (Mr Bolton, Mr Huddy and the CFMEU) admitted the Director’s allegations in their filed defence. The penalty hearing in that matter was adjourned pending the determination of the remaining matters.

7    The trials in Actions SAD 302/2014, 303/2014, 304/2014 and 306/2014 were to commence on 15 October 2015. However, at the commencement of the hearing, counsel informed the Court that all matters had been resolved. The Director withdrew his allegations of particular contraventions by three officials and the respondents admitted the remaining allegations. The resolution had the effect, amongst other things, that the Director no longer made any allegation against Mr Kalem, who had been a respondent to Action SAD 303/2014.

8    In total, the three sets of proceedings involved allegations against 15 officials of the CFMEU. I found, whether on the respondents’ admissions or following a trial, that 37 contraventions by the 15 individuals were established and that the CFMEU was to be taken, by s 793 of the FW Act, to have committed the same contraventions.

9    This judgment contains the Court’s reasons with respect to penalties and other relief in the Lend Lease sites Action (Action SAD 300/2014).

10    The circumstances of each contravention are set out in some detail in the Court’s reasons in the Liability Judgement. I will not repeat those circumstances in these reasons. The two sets of reasons should be read together.

11    Because of considerable commonality in the three sets of proceedings, I propose in these reasons to address matters of general principle and other matters of general relevance. In the judgments concerning the penalty and other relief in Action SAD 219/2014 (the SAHMRI Site Action) and Actions SAD 302/2014 to SAD 306/2014 inclusive, I will incorporate by reference what I have said on those topics in these reasons.

Penalties: general principles

12    Section 546(1) of the FW Act empowers the Court to order a person to pay a pecuniary penalty when it is satisfied that the person has contravened a civil remedy provision. Each of ss 499 and 500 is such a provision.

13    By reason of ss 539(2) and 546(2) of the FW Act, the maximum penalty for a contravention of s 500 is 60 penalty units in the case of an individual, and 300 penalty units in the case of a body corporate, such as the CFMEU. At the times of the contraventions in the three sets of proceedings, the value of a penalty unit, as fixed pursuant to s 4AA of the Crimes Act 1914 (Cth), was $170. Accordingly, the applicable maximum penalty for a contravention of s 499 and s 500 by an individual is $10,200 and by the CFMEU, $51,000.

14    In Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 326 ALR 476 (Commonwealth v DFWBII) at [59], the plurality (French CJ, Kiefel, Bell, Nettle and Gordon JJ) said, in relation to civil penalties generally, that they are not retributive but are “essentially deterrent or compensatory and therefore protective”. Earlier, at [24], the plurality had noted that civil penalties are part of the range of enforcement mechanisms available to regulators by which to achieve compensation, prevention and deterrence. The plurality also referred to the central role of deterrence in the fixing of civil penalty at [55]:

[W]hereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty, as French J explained in Trade Practices Commission v CSR Ltd, is primarily if not wholly protective in promoting the public interest in compliance:

“Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act]. ... The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act.”

(Citations omitted)

See also the observations of Keane J at [102].

15    The principles relating to the determination of the appropriate penalties in circumstances like the present have been stated in a number of the authorities and are well settled. It is not necessary to refer to them in detail. It is sufficient to refer to DFWBII v Cartledge [2014] FCA 1047 at [50]-[54]; DFWBII v CFMEU (No 2) [2015] FCA 407 at [87]-[100] and to DFWBII v CFMEU [2015] FCA 1213 at [11]-[25]. Neither party suggested that there should be any review of these principles in the light of the decision of the High Court in Commonwealth v DFWBII.

16    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, (2005) 224 ALR 467 at [72]; Plancorp Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2008] FCAFC 170, (2008) 171 FCR 357 at [61]-[62].

17    The Court is to determine a penalty which is proportionate to the contravening conduct and the contravenor’s circumstances by a process of instinctive synthesis after taking into account all relevant factors: Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8, (2008) 165 FCR 560 at [27], [55]; Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357 at [37], [39].

18    A number of the authorities in this Court have emphasised that deterrence has both personal and general aspects: Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65, (2007) 158 FCR 543 at [93]; Leighton Contractors Pty Ltd v CFMEU [2006] WASC 317, (2006) 164 IR 375 at [74]; Draffin v CFMEU [2009] FCAFC 120, (2009) 189 IR 145 at [89]; and Alfred v CFMEU [2011] FCA 556 at [89]-[91]. Deterrence is particularly important in the present case because of the CFMEU’s record of non-compliance with industrial legislation.

19    Several matters have been identified in the authorities as relevant to the assessment of penalty:

(1)    the nature and extent of the contravening conduct and the circumstances in which it occurred;

(2)    the nature and extent of any loss or damage sustained as a result of the contraventions;

(3)    whether there has been any similar previous conduct by the respondent;

(4)    when there are multiple contraventions, whether these are to be regarded as separate and distinct or arising out of the one course of conduct;

(5)    whether senior management was involved in the contraventions;

(6)    whether the contravenor has exhibited contrition and/or taken any corrective action;

(7)    whether the contravenor cooperated with the enforcement authorities.

20    The maximum penalties are to be reserved for the worst kinds of contraventions but this does not mean that all other contraventions are to be graded by reference to some hypothetical worst case: Veen v The Queen (No 2) (1988) 164 CLR 465 at 478.

21    In some of these matters, the respondents submitted that rehabilitation should be a factor in the fixing of penalties but their submissions did not indicate how that could be so in the circumstances of the present cases. I do not regard rehabilitation as a significant matter to be addressed.

22    In accordance with the decision of the High Court in Commonwealth v DFWBII, the parties made submissions in Actions SAD 219/2014 and SAD 300/2014 as to the range of penalties which are appropriate. The submissions in Actions SAD 302/2014, SAD 303/2014, SAD 304/2014, SAD 305/2014 and SAD 306/2104 were made before the High Court judgment and, accordingly, the parties in those proceedings did not make submissions as to ranges of penalty of a corresponding kind. In the two matters in which the parties did make submissions as to ranges of appropriate penalties, I will proceed on the basis that the Court is not bound by the suggested ranges: Commonwealth v DFWBII at [48].

The significance of previous contraventions

23    In DFWBII v CFMEU [2014] FCA 160, I addressed some of the underlying principles to be applied when a respondent has a record of prior contraventions. Having regard to some of the submissions of the Director, it is appropriate to repeat some of what I then said.

24    The general principle relating to the relevance of prior offences to the fixing of sentences for criminal offences was stated in Veen 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)

As can be seen, in this passage, the High Court accepted that an antecedent criminal history is relevant to a court’s assessment of whether the offence under consideration is an uncharacteristic aberration or a manifestation of a continuing attitude of disobedience of the law. It rejected the submission that antecedent criminal history was relevant only to an offender’s claim for leniency.

25    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.

(Citation omitted)

26    In Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 at [67], 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 the sentence is imposed.

27    The High Court again addressed the significance of a previous record in Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at [32]. 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)

28    The prior offences which Veen, McInerney and Weininger considered pertinent were those committed before the commission of the offences for which the Court was then sentencing the offender. Those prior offences for which the offender was also sentenced before the commission of the later offences are especially significant. Offences committed after the subject offences will usually be the subject of separate sentencing, and care needs to be taken to avoid double punishment.

29    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 conduct of that kind may lose some or all of its significance if it occurred at a time well-distant from the current offending.

30    Previous offences of a different character 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 the way discussed in McInerney. 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.

31    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.

32    In Australian Building and Construction Commissioner v CFMEU (No 2) [2010] FCA 977; (2010) 199 IR 373 at [47], Barker J summarised several of the principles regarding the significance of previous contraventions to the imposition of penalty:

(1)    similar prior relevant conduct may be taken into account in assessing penalty, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the contravention for which the Court is imposing penalty;

(2)    similar prior conduct may demonstrate that a respondent has a history of engaging in the particular conduct in question, that the penalties previously imposed were insufficient to deter the respondent from re-engaging in that conduct, and that the respondent has failed to take adequate steps to prevent further contraventions;

(3)    a respondent is not to be punished again for the prior conduct but conduct may diminish the leniency which could otherwise be afforded by reason of good character;

(4)    the effect of prior contravening conduct is more cogent if it has been the subject of conviction. If not, the prior conduct is still relevant but perhaps of less weight.

The CFMEU record

33    I have previously described the CFMEU record of contraventions of industrial legislation as dismal: DFWBII v Stephenson [2014] FCA 1432 at [76]. That description is just as apt now as it was then.

34    A table provided by the Director shows that, before November 2013, courts had dealt the CFMEU and/or its officials on six separate occasions for contraventions of s 500 of the FW Act or the counterpart provision in previous legislation. The six cases involved contraventions occurring on seven separate occasions. Individual officials had contravened s 500 on seven separate occasions and the CFMEU on six occasions. In addition, before November 2013, CFMEU officials had committed 20 individual contraventions of s 500 and the CFMEU itself 14 contraventions (being contraventions of s 500 or of its counterpart provision in previous legislation) which had not been dealt with by a court by that date. That by itself is a significant record.

35    The CFMEU’s compliance with industrial legislation generally has been poor. The Director’s summary shows that in the period from December 2000 to October 2013, the CFMEU and its officials were dealt with by courts on 80 separate occasions for contraventions of industrial legislation. On any reasonable measure that is an appalling record. It bespeaks an attitude by the CFMEU of ignoring, if not defying, the law and a willingness to contravene it as and when it chooses. This means that specific deterrence in particular must be a prominent consideration in the penalties imposed on the CFMEU in the present case.

36    The Director’s summary also showed that since November 2013, courts have dealt with the CFMEU and/or its officials on 16 separate occasions for contraventions of s 500 of the FW Act or its predecessor. Those 16 cases have involved contraventions occurring on 23 separate occasions. This record of repeated contraventions makes it obvious that the penalties to be imposed on the CFMEU cannot be mitigated because of any change of attitude on its part to compliance with the law.

37    It is appropriate to keep in mind the purpose of provisions such as s 793. Cooper J discussed that purpose in Hamberger v CFMEU [2002] FCA 585 in relation to the then s 298B(2) of the Workplace Relations Act 1996 (Cth). Cooper J said:

[20]    The statutory intention underlying s 298B(2) is to make the organisation responsible for the conduct of its officers. It is intended to encourage those organisations to take active steps to control the actions of its officers, servants and agents to ensure as far as is possible by taking all reasonable steps, that the conduct of them is not in contravention of Part XA of the Act. It was not intended that an industrial organisation could avoid the serious consequences of conduct engaged in by its officers, servants or agents, deliberately and flagrantly in contravention of the Act, by simply doing nothing to control or prevent it, or by turning a blind eye to the conduct. If an industrial organisation turns a blind eye, or does not concern itself as to the manner and methods employed by officers, servants or agents of the industrial organisation to achieve what they see as the organisation’s ends, the organisation is at risk of being heavily penalised where the means adopted are prohibited and exhibit the worst features of the proscribed conduct.

38    Substantial penalties have been imposed on the CFMEU in the past. They have not been sufficient to deter the CFMEU from further contraventions. This suggests that the penalties to be imposed on it now must be even more severe.

Contraventions of s 500 in context

39    In assessing the seriousness of contraventions of s 500, it is appropriate to keep in mind the nature and purpose of the rights to which the provision refers.

40    Division 2 of Pt 3-4 of the FW Act grants permit holders rights of entry of two kinds: entry for the purposes of investigating contraventions of the FW Act itself and of a limited class of industrial instruments (ss 483A(1); 483D(1)); and entry to hold discussions with employees performing work on the premises. In addition, Div 3 of Pt 3-4 recognises that persons may hold permits under State or Territory occupational, health and safety legislation and regulates in some respects the exercise of those rights.

41    Absent these legislative provisions, union officials would have no right to enter the premises of others without the agreement of the occupier. Any unauthorised entry would therefore be unlawful and may amount to a criminal offence. Thus, in Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56; (2015) 230 FCR 15 at [14], the Full Court said:

A person granted an entry permit is conferred extensive power. Entry permits confer rights which significantly erode the common law right of occupiers to exclude those to whom they do not wish to grant entry.

42    It is evident that, in granting rights of entry, the legislature has sought to balance the interests of occupiers of premises, employers, unions and employees: Maritime Union at [14]-[15]. Unions and employees have an interest in union officials being able to enter premises in order to ensure compliance with industrial legislation and instruments. The ability of permit holders to enter premises is an important aid to effective communication between employees and union officials and to the representation by unions of the industrial interests of employees. Occupiers and employers, on the other hand, have an interest in being able to conduct their business activities without disruption or inconvenience.

43    A number of provisions in Pt 3-4 of the FW Act are directed to achieving a balance of these interests. First, Pt 3-4 confines the persons who may exercise rights of entry. Those rights are not available to any person or, for that matter, to any union official. They are available only to those union officials who have been issued a permit by the Fair Work Commission (the FWC). Before issuing a permit, the FWC must be satisfied that the official is a “fit and proper person” (s 512). The determination of whether the official is such a person takes account of matters bearing upon the official’s character and history of compliance with industrial legislation and whether he or she has had appropriate training in the rights and responsibilities of a permit holder (s 513).

44    Secondly, Pt 3-4 regulates the time and manner in which the rights it grants may be exercised. Permit holders cannot enter without written notice given at least 24 hours in advance (ss 487, 518), thereby giving the occupier or employer, as the case may be, some forewarning of the proposed entry and of its purpose. The time at which permit holders may enter premises and at which they may hold discussions with employees are regulated (ss 490, 492), as are the places at which they may meet the employees (s 492).

45    The exercise of rights in accordance with Pt 3-4 by permit holders is protected by provisions making it unlawful for a person to refuse or delay unduly their entry onto the premises (s 501) and which make it unlawful for a person to hinder or obstruct intentionally a permit holder exercising such rights (s 502).

46    Section 500 is part of this scheme of balancing of interests because it imposes a corresponding obligation on permit holders exercising, or seeking to exercise, rights in accordance with Pt 3-4 not to hinder or obstruct intentionally any person or otherwise to act in an improper manner.

47    In my opinion, the assessment of penalties for contraventions of s 500 should take account of its place in the statutory scheme. Section 546, to which I will refer shortly, exists to facilitate the enforcement of provisions such as those contained in Pt 3-4: Commonwealth v DFWBII at [16]. The penalties should be assessed in the context, and should also take account of the fact, that the contraventions have been committed by persons who were accepted as being fit and proper to hold the permit and who can be taken to have been aware of the responsibilities involved in its exercise.

Single penalties

48    Some of the submissions of the parties were made on the premise that it is open to the Court to impose a single penalty in respect of multiple contraventions. At one stage, I thought that may be appropriate but, on reflection, am not satisfied that the Court is empowered to proceed in that way.

49    The source of the Court’s power to impose pecuniary penalties is s 546 of the FW Act. That section provides (relevantly):

(1)    The Federal Court, the Federal Circuit Court or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.

Note:    Pecuniary penalty orders cannot be made in relation to conduct that contravenes a term of a modern award, a national minimum wage order or an enterprise agreement only because of the retrospective effect of a determination (see subsections 167(3) and 298(2)).

Determining amount of pecuniary penalty

(2)    The pecuniary penalty must not be more than:

(a)    if the person is an individual—the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); or

(b)    if the person is a body corporate—5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2).

…

50    The terminology of subs (1) suggests that, when the Court is satisfied that a person has contravened a civil remedy provision, it is to exercise a discretionary judgment as to whether to order the payment of a pecuniary penalty. It indicates, however, that when the Court decides to impose a pecuniary penalty it does so in respect of the particular contravention which the Court has found established. That is to say, each contravention is to have its own penalty. This impression is confirmed by the terms of subs (2) which fixes the maximum penalty which may be imposed by reference to that applicable to an individual contravention.

51    The FW Act does in one provision contemplate that a single penalty may be imposed for multiple contraventions. That is s 557, subs (1) of which provides:

(1)    For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:

(a)    the contraventions are committed by the same person; and

(b)    the contraventions arose out of a course of conduct by the person.

Section 557 is inapplicable in the present cases because s 500 (and, for that matter ss 348 and 499) are not included in the subs (2) list of provisions.

52    Otherwise, the FW Act does not contain any provision indicating that the Court may impose a single penalty for multiple contraventions. The express provision allowing (and indeed requiring) the imposition of a single penalty for multiple contraventions in one circumstance tends to imply that the power is not available in other circumstances.

53    In DFWBII v Cradden [2015] FCA 614, Logan J referred in this context to s 4K of the Crimes Act 1914 (Cth). That provision provides (relevantly):

4K Continuing and multiple offences

…

(3)    Charges against the same person for any number of offences against the same provision of a law of the Commonwealth may be joined in the same information, complaint or summons if those charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character.

(4)    If a person is convicted of 2 or more offences referred to in subsection (3), the court may impose one penalty in respect of both or all of those offences, but that penalty shall not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence.

Logan J referred to the possibility that the term “offences” used in subs (4) may not be confined to criminal offences, noting in this respect an observation of Lord Goddard in Brown v Allweather Mechanical Grouting Co Limited [1954] 2 QB 443 at 447-8.

54    I doubt that s 4K(4) of the Crimes Act is applicable to contraventions of civil remedy provisions in the FW Act. The reference in subs (3) to “offences” which have been joined in the same “information, complaint or summons” and the terms “convicted” and “offences” in subs (4) indicate that those provisions are directed to criminal offences. The distinctions between criminal proceedings and civil penalty proceedings to which the reasons of the plurality drew attention in Commonwealth v DWFBII at [51]-[57] are also pertinent in this context. In my opinion, the power vested in courts by s 4K is not available in the present context.

55    The circumstance that two or more contraventions occurred as part of a single course of conduct is of course relevant to the assessment of penalty. In such cases, the Court must be careful to avoid double punishment and, accordingly, must consider carefully whether the contraventions resulted from a single incursion into unlawful conduct, and whether there are aspects of one or more of the offences which are common to others: CFMEU v Cahill [2010] FCAFC 39; (2009) 269 ALR 1 at [41]-[43]. However, a finding that two or more contraventions occurred in single course of conduct does not of itself authorise the imposition of a single penalty for those contraventions.

56    I also observe that in DFWBII v CFMEU [2015] FCAFC 59, the Full Court said at [43] that, absent statutory authority to do so, application of the totality principle does not authorise a sentencing court to impose a single global sentence for multiple offences. It considered, although not finally deciding the point, that the same applied with respect to the imposition of civil penalties under the former Building and Construction Improvement Act 2005 (Cth) (the BCII Act). The Full Court also considered that the BCII Act contained no statutory warrant for the imposition of a single penalty in respect of multiple contraventions. This view of the Court’s powers was not the subject of the appeal to the High Court, and it was not addressed in that Court.

57    In my opinion, the position described by the Full Court in relation to the BCII Act is also the position under the FW Act.

58    I add that a power to impose a single penalty for multiple contraventions would be advantageous. In particular, it would simplify the task of courts when imposing penalties for multiple contraventions. It is for this reason that some jurisdictions permit sentencing courts to impose a single sentence for multiple offences. Section 4K of the Crimes Act has already been mentioned and see s 18A of the Criminal Law (Sentencing) Act 1988 (SA).

The totality principle

59    The respondents submitted that the Court should apply the totality principle in those instances in which multiple penalties are to be imposed on one respondent and, in particular, on the CFMEU itself.

60    In Mill v The Queen (1988) 166 CLR 59 at 62-3, the High Court approved the following statement of the totality principle in the context of criminal sentencing:

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.

(Emphasis added)

61    The totality principle reflects two different considerations:

(1)    when an offender is sentenced for a number of offences, the Court must ensure that “the aggregation of the sentences appropriate for each offence is a just and appropriate measure for the total criminality involved”: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307-8 (McHugh J) (proper proportionality);

(2)    sometimes, although the individual terms of imprisonment imposed in respect of each of a number of offences will be appropriate, the aggregate of all those sentences will become so “crushing” as to call for some reduction in the aggregate: Postiglione at 308 (McHugh J), 340-1 (Kirby J) (effect on the particular contravenor).

See also, R v E, AD [2005] SASC 332; (2005) 93 SASR 20 at [37].

62    Although developed originally as a principle of criminal sentencing, the totality principle is also applicable to the imposition of civil penalties: DFWBII v CFMEU at [41].

63    In criminal sentencing, the totality principle may lead a court to order that some sentences of imprisonment be made wholly or partly concurrent. In the civil penalty context, the totality principle may lead to the moderation of the penalties imposed for some or all of the contraventions and, when there are numerous contraventions, perhaps to no penalty at all being imposed for some. Although a court imposing penalties for multiple contraventions must consider the possible application of the totality principle (DFWBII v CFMEU at [40]), its application in the circumstances of a given case involves a discretionary judgment (Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70; (2008) 168 FCR 383 at [58]-[59]).

64    As already noted, the totality principle does not authorise the imposition of a single penalty. Instead, its application makes it appropriate for the Court to moderate the penalties which would otherwise have been imposed.

A concerted campaign by the CFMEU

65    The Director submitted that the penalties to be imposed for the contraventions of s 500 at the Lend Lease sites in this Action should reflect the circumstance that they occurred in the course of a concerted and deliberate campaign by the CFMEU and the individual respondents involving the entry of building sites without providing notices of entry. It could be inferred, he submitted, that such a campaign had been endorsed, if not initiated, by senior management within the CFMEU. He referred to a number of matters indicating the existence of the campaign.

66    First, the entries at four sites (the Flinders University site, the TAFE site, the Convention Centre site and the Adelaide Oval site) on 30 October 2013 and then again at the Adelaide Oval site on 31 October 2013, 12 November 2013 and 13 November 2013 had a close temporal proximity. In addition, the entries involved conduct of a similar kind. The Director submitted that these matters by themselves were indicative of a campaign.

67    Secondly, the Director noted that it had been the practice of CFMEU officials when exercising rights of entry at the sites previously to provide notices of entry as required by s 487 of the FW Act. See the Court’s findings in [2015] FCA 1293 at [32], [129], [150] and [177]. This suggested that the entries in late October and early November 2013 without the prior provision of notices reflected a deliberate change of policy by the CFMEU.

68    Thirdly, the Director referred to statements made by some of the individual respondents which indicated that this was so. These included Mr Gava’s response when asked by Mr Crabb to leave the Flinders University site, “this is the way it’s done now”; Mr Gava’s response to Mr Gooding at the TAFE site when told that he could not go onto the site, “we’ll be doing whatever we want to do”; Mr Gava’s later response to Mr Gooding, “we’re not going to be filling out right of entry notices … that’s come from the Secretary”; Mr Gava’s statement to Mr Burgess at the TAFE site, “we’ve been instructed to do this by our boss, whether that’s right or wrong, that’s not our decision”; Mr O’Connor’s response to Mr McMahon at the Convention Centre site when told an entry notice was required, “we won’t be putting a notice in, we’ll be going onto site anyway”; Mr Roberts’ statement to Mr Ising at the Adelaide Oval site, “this is the way of the world until your managers talk to our managers”; and Mr Beattie’s statement to Mr Hay at the Convention Centre site on 30 October 2013 that his conduct was “part of a national drive focused on Lend Lease”.

69    Next, the Director referred to the involvement of Mr McDermott in several of the contraventions. Mr McDermott was at material times the Assistant Secretary of the Construction and General Division of the CFMEU in South Australia. As such he was one of the CFMEU’s senior officials in South Australia. The Director submitted that the involvement of such a senior official was indicative of organised action.

70    Finally, the Director pointed to the circumstance that, on most occasions, several organisers attended each site, with some of those organisers coming from branches of the CFMEU other than its South Australian Branch. There was no evidence of an “innocent” purpose accounting for those organisers being in Adelaide. He submitted that this too was indicative of a concerted campaign being made in Adelaide, as it tended to confirm Mr Beattie’s statement to Mr Hay that the CFMEU had a “national drive” directed at Lend Lease.

71    I consider that, subject to one qualification, the evidence strongly supports the Director’s submission. I am satisfied that, in late October 2013, the CFMEU had decided upon a form of concerted action which involved deliberate entry onto Lend Lease building sites without providing a notice of entry. It is not necessary to make findings about the purpose of the campaign but I note that, on several occasions during the subject entries, reference was made, whether expressly or by implication, to the CFMEU wish that Lend Lease employ a permanent CFMEU delegate on each site. Whatever its purpose, I am satisfied that the CFMEU and its officials were engaged in a concerted campaign at Lend Lease sites in Adelaide in deliberate defiance of the requirements in the FW Act regarding the exercise of rights of entry. I agree that the conduct of the respondents on 30 and 31 October 2013 should be assessed in that light. It means that the contraventions are to be regarded as deliberate and pre-meditated. This is a significant matter of aggravation.

72    The qualification relates to the entries at the Adelaide Oval site on 12 and 13 November 2013. These entries seem to be qualitatively different from the entries on 30 and 31 October: they did not involve the attendance of multiple organisers, including organisers from outside South Australia; the conduct on those occasions appears to be different from that occurring on 30 and 31 October 2013; the entries on those dates appear to have been prompted by concerns about the cricket match which was to commence on 13 November 2013, and the entry on 13 November did not involve a contravention of s 500 at all. I am not satisfied that these entries were part of the concerted campaign by the CFMEU as alleged by the Director.

73    The respondents did not concede that their conduct at the Lend Lease building sites was the implementation of a concerted campaign. They did not, however, advance any submission to the contrary. The respondents submitted instead that, if the Court accepted the Director’s submission, it should have the consequence that all of the contraventions be treated as incidents in a single course of action, and penalties imposed on that basis.

74    In my opinion, this submission should not be accepted as, to do so, would involve a misapplication of accepted principles relating to the relevance of a course of conduct or, as it is sometimes called, the “single transaction” principle. It is necessary to say a little more about the principle.

75    The judgment of Owen JA in Royer v Western Australia [2009] WASCA 139 is often cited as a convenient statement of the one transaction principle. Owen JA said:

[22]    … At its heart, the one transaction principle recognises that, where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality. The interrelationship may be legal, in the sense that it arises from the elements of the crimes. It may also be factual, because of a temporal or geographical link or the presence of other circumstances compelling the conclusion that the crimes arise out of substantially the same act, omission or occurrences.

…

[24]    Because of the wide variety of circumstances in which the principle can arise it is not always easy to reconcile the way it has been applied in individual cases. But what can be detected in each case is an examination of the closeness of the interrelationship and the danger of double jeopardy in so far as punishment (not criminal liability) is concerned. In this respect, I think it is worth repeating what Wells J said in Attorney-General v Tichy (1982) 30 SASR 84, 92-93:

“It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient.”

[25]    It seems to me, with respect, this is an admirable distillation of the principle. …

76    The principle has been applied in the context of industrial offences. In CFMEU v Cahill to which I referred earlier, Middleton and Gordon JJ said:

[39]    … The principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is “the same criminality” and that is necessarily a factually specific enquiry. Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions.

(Emphasis in the original)

See also, Mornington Inn v Jordan at [51].

77    From these passages, it can be seen that the single course of conduct principle is applicable when there is an inter-relationship between the legal and factual elements of two or more contraventions. As the last sentence in the quoted passage from CFMEU v Cahill indicates, “bare identity of motive” is unlikely to establish the requisite inter-relationship.

78    That observation is pertinent in the present case because the matter on which the respondents rely presently is the CFMEU’s motive for the campaign. The respondents’ purpose does not warrant the conclusion that everything done in pursuit of that purpose was part of a single course of conduct. The concerted campaign of the CFMEU may explain the conduct of its officials but it does not, at least by itself, provide the requisite inter-relationship between the contraventions to warrant the application of the single course of conduct principle.

79    In my opinion, it is appropriate to approach the matter on the basis discussed by Wells J in Tichy in the passage quoted in Royer, namely, by considering whether the conduct of the respondents comprising two or more contraventions can be properly characterised as constituting two or more incursions into contravening conduct and not incidents in “one multi-faceted course of [unlawful] conduct”.

Declarations: general principles

80    The making of declarations in cases like the present serves a number of purposes: DFWBII v Stephenson at [104]. First, and perhaps foremost, it is a formal record of the adjudication of the charged contravention. The formal and public declaration that the respondents engaged in the charged conduct forms part of the community’s denunciation and censure of the conduct. Secondly, the prospect that a declaration will be made has, by itself, a deterrent effect. Thirdly, the making of declarations operates as a vindication of the Director’s actions. See also ACCC v CFMEU [2006] FCA 1730; (2007) ATPR 42-140 at [6].

81    In DFWBII v CFMEU [2015] FCA 1213 at [7], Tracey J noted that declarations may also serve an educative purpose in explaining to the public and to persons whose conduct is governed by particular legislation how and why contraventions of that legislation have occurred.

82    In ACCC v Yellow Page Marketing BV (No 2) [2011] FCA 352; (2011) 195 FCR 1 at [67]-[68], Gordon J said that the considerations bearing upon the exercise of the discretion to grant or refuse declarations include whether the declaration would have any utility, whether the proceedings involved the matter of public interest, whether the circumstances called for the Court’s disapproval of the contravening conduct, and whether the declarations contained appropriate and adequate particulars of how and why the conduct in question is a contravention of the relevant legislation.

Declarations concerning the respondents’ conduct at the Lend Lease Sites

83    Subject to one qualification, the respondents did not submit that the declarations of the contraventions sought by the Director should not be made.

84    The qualification relates to the declaration proposed with respect to Mr Roberts’ conduct at Adelaide Oval on 30 October 2013. Counsel submitted that the proposed declaration that Mr Roberts had contravened s 500 by, amongst other things, “speaking in an aggressive, loud, rude and threatening manner to the Site Operations Manager” was not supported by the findings in the Liability Judgment and, accordingly, should not be made. I do not accept that submission. Mr Ising, whose evidence I regarded as reliable, said in the evidence quoted at [196] of the Liability Judgment that in the interchange which he had with Mr Roberts at about 12.10 pm on 30 October 2013:

Mr Roberts then became quite aggressive and acted threateningly towards me. He was almost screaming at me and was being loud and obnoxious. He was putting his face right up close to mine. I felt threatened by how loud and close he was … Mr Roberts then moved about 10 m away from me and then said “I just want to smash someone right now”.

Mr Ising also described Mr Roberts’ conduct when raising the issue about the forklifts in the basement, as having been “aggressive, loud and rude”: see the Liability Judgment at [201]. Mr Roberts had admitted in his filed defence that Mr Ising may have perceived him as being aggressive and that he had been told by Mr Ising to “calm down”.

85    These passages provide ample justification for the terms of the declaration with respect to Mr Roberts proposed by the Director.

86    I am satisfied, having regard to the evidence at the trial and the admissions by some respondents that it is appropriate for each declaration proposed by the Director to be made. The declarations will have utility, do concern a matter of public importance and an expression of the Court’s disapproval of the conduct is warranted. I will however, make some modifications to their form.

Fair Work Commission consent orders: corrective action

87    The respondents submitted that the CFMEU’s consent to orders made on 18 February 2015 by the FWC in proceedings between four Lend Lease companies, on the one hand, and the CFMEU and the CEPU, on the other, should be regarded as mitigatory. This was so, it was said, because the CFMEU’s consent to, and later compliance with, the orders was a form of corrective action, indicated a willingness on its part to cooperate with the Lend Lease companies, and reduced the need for the penalties to reflect general and personal deterrence.

88    In support of this submission, the respondents provided the decision of the FWC in Lend Lease Building Pty Ltd trading as Lend Lease v CFMEU and CEPU [2015] FWC 1130 (Watson SDP) delivered on 18 February 2015 together with the orders made by consent by the FWC that day.

89    The reasons of Watson SDP indicate that four Lend Lease companies (including Lend Lease Building Contractors Pty Ltd, the relevant Lend Lease entity in the present proceedings) had applied under s 505 of the FW Act for orders against the CFMEU and the CEPU. Section 505 empowers the FWC to deal with a dispute about the operation of Pt 3-4. The FWC may deal with such a dispute by arbitration and may make orders of various kinds, including orders imposing conditions on, suspending, or revoking an entry permit, as well as orders about the future issue of entry permits to one or more persons.

90    The parties bound by the consent orders made by the FWC were the four Lend Lease entities, the CFMEU, 15 named CFMEU officials (of whom only one, Stephen Long, is a respondent to the present proceedings) and “all other CFMEU officers” (defined to mean officers, employees and agents of the CFMEU who have right of entry permits under the FW Act or right of entry permits under WHS legislation). The consent orders applied to all “building and engineering sites across Australia” which were owned or operated by one or other of the four Lend Lease companies.

91    The consent orders required both parties to comply with obligations stated in a Schedule and, in addition, required the CFMEU to take all reasonable and necessary steps to ensure that its officers complied with the obligations imposed by the Schedule. Most, but not all of the obligations contained in the Schedule were imposed on the CFMEU. In particular, the consent orders required CFMEU officials when exercising, or seeking to exercise, rights of entry, to provide properly completed notices of entry at the time and in the manner required by the FW Act; to produce upon request on each entry their right of entry permit; to wear appropriate personal protection equipment; to identify themselves on request by Lend Lease; to complete Visitors’ Books in the appropriate manner; to undergo the required site visitor inductions; and to comply with all reasonable workplace health and safety requirements applicable to the site. The Schedule also imposed other restraints on the CFMEU which it is not necessary to mention separately.

92    In my opinion, it is appropriate to take some account of the CFMEU’s consent to the orders in the FWC but, for a number of reasons, the weight which can be given to that consent is limited.

93    First, there is no indication that the subject matter of the application by the four Lend Lease companies in the FWC included the conduct constituting the contraventions of s 500 which are presently before this Court. The fact that only one of the individual respondents in these proceedings was also a respondent to the FWC proceedings tends to suggest that the latter proceedings concerned the conduct of CFMEU officials at other sites. I also observe that the consent orders were made on 18 February 2015, some 14 months after the occurrence of the contraventions with which the Court is presently concerned. It is a matter of notoriety that most, if not all, of the projects at which the contraventions occurred in Adelaide had been completed by 18 February 2015. That being so, it is difficult to regard the CFMEU’s consent in the FWC as a form of “corrective action” in relation to those projects.

94    Secondly, it is not possible for the Court to assess whether the CFMEU’s consent in the FWC was, in effect, a recognition of the inevitable. The Court does not know the point which the proceedings in the FWC had reached at the time of the consent. That consent may have resulted from the CFMEU’s appreciation that the evidence presented, or to be presented, by the four Lend Lease companies was such that, absent their consent to an order, the FWC was likely to make one or more of the orders of the kind contemplated by s 505(2). The fact that the majority of the obligations imposed by the consent order bind the CFMEU and not the four Lend Lease companies tends to suggest that the parties appreciated that the four Lend Lease companies had presented, or would present, a persuasive case.

95    Thirdly, the obligations which the CFMEU and its officers accepted under the consent order were, in effect, to comply with existing law. They do not seem to have required the CFMEU or its officials to engage in some additional activities by way of corrective action. In saying that, I do not overlook the order requiring the CFMEU to take all reasonable and necessary steps to ensure that its officers were made aware of the consent order and of the need to comply with its terms. Compliance with that order may have required the CFMEU to undertake some forms of additional action. However, there is no evidence before the Court as to what, if anything, the CFMEU did in practice to comply with that obligation.

96    Counsel for the respondents submitted that, since 18 February 2015, the CFMEU and its officials have complied with the obligations imposed by the consent order and that by itself is mitigatory. There is, however, no evidence that that is so and, given the CFMEU record, I consider that the Court should require evidence before acting on such an assertion. I also consider that, although the consent orders relate only to conduct at building and engineering sites of the four Lend Lease companies, a genuine commitment to comply with the law concerning rights of entry would be reflected in the conduct of CFMEU officials at sites other than Lend Lease sites. The CFMEU did not attempt to establish its compliance generally with the requirements of Pt 3-4 of the FW Act since 18 February 2015.

97    It is unfortunate that the Court does not have evidence about the various matters which I have mentioned. However, it was for the CFMEU, given its claim that its consent to the FWC orders was mitigatory, to adduce evidence of those matters, and it did not do so.

Some common matters

98    I will turn next to the penalties to be imposed on the individual respondents. Before doing so, it is convenient to note some matters which are common to all respondents.

99    Although some respondents admitted their contraventions, none has made any expression of regret, apology or contrition; apart from the so-called corrective action arising from the consent to the FWC orders on 18 February 2015, none has identified any action it or he has taken to avoid further contraventions in the future; and none has even made a statement of a determination to ensure that it and he complies with s 500 in the future.

100    None of the respondents provided evidence of their financial circumstances, let alone evidence that they do not have the capacity to pay penalties of the order sought by the Director.

101    The Director did not allege that Lend Lease suffered quantifiable economic loss or damage at any of the four sites by reason of the unlawful entries. It is, however, appropriate to take into account that senior managers at each site were distracted from their normal duties by having to deal with the CFMEU officials. In some cases, the periods involved were relatively short but in others, for example, at the Adelaide Oval site on 30 October 2013, the period extended over several hours. The distraction of the managers from their duties included the time they later spent in making reports to their upper management concerning the unlawful entries, but the evidence did not disclose the times involved in doing so.

102    In addition, workers carrying out their normal duties at each site were distracted from their work by the CFMEU officials speaking to them. In relation to the Flinders University site, I will mention separately the stoppage of work with the crane while the CFMEU flag was relocated.

103    Finally, it is appropriate to keep in mind in each case the affront to the rights of Lend Lease associated with each of the unlawful entries. At some sites this was more obvious than at others. The CFMEU officials acted in defiance of the requirements of Pt 3-4 of the FW Act and, with the possible exception of the entry at the Convention Centre site, in a way which was dismissive of the objections of the Lend Lease managers. Their conduct was a subversion of the balancing of the rights and interests sought to be achieved by Pt 3-4 to which I referred earlier and an affront to the authority of Lend Lease and of its managers.

Mr Gava (Second Respondent)

104    Penalties are to be imposed on Mr Gava for his contraventions of s 500 at the Flinders University site and TAFE sites on 30 October 2013 and for his contravention of s 348 of the FW Act at the Flinders University site on 30 October 2013.

105    The circumstances of Mr Gava’s contraventions at the Flinders University site are set out at [35]-[65] and [94]-[106] respectively of the Liability Judgment and the circumstances of his contravention of s 500 at the TAFE site are at [125]-[147].

106    It is sufficient for present purposes to record that Mr Gava, Mr Kalem, Mr Lomax and another CFMEU official named Vern arrived at the Flinders University site on 30 October 2013 just before 9 am. They entered the site without having provided a notice of entry and without waiting to be met at the site office, or to be escorted while on site. When challenged by the site manager, Mr Crabb, and told to leave, Mr Gava responded with words to the effect of, “We are not leaving. This is the way it’s done now. We’re going for a walk on the site”. The group then ignored Mr Crabb, proceeded further into the site talking to some 6-8 formworkers as they moved about the site and then moved to the lunchroom with the formworkers at about 9.30 am. Mr Gava and the other members of the group remained on the site for approximately one hour and forty minutes.

107    Mr Gava admitted that, while on the Flinders University site on 30 October 2013, he had contravened s 348 of the FW Act by threatening to cause work to be stopped with the intention of coercing Lend Lease to accede to the demand that the CFMEU flag be flown on the crane hook. The threat was made in his statement to Mr Crabb at about 2.15 pm that, “If you don’t do it [put the flag on the hook], we’ll stop the job”.

108    Mr Gava was part of the same group of CFMEU officials who went to the TAFE site at about 10.40 am on 30 October 2013, immediately after leaving the Flinders University site. Again, the group entered the site without providing a notice of entry and without waiting to be met at the site office. Instead, they went straight to one of the lunchrooms and commenced discussions with workers. They defied Mr Gooding’s refusal to allow them onto the site as well as his request that they wear the appropriate personal protective equipment (PPE). In addition, the group re-entered the site at about 1.20 pm, again without having provided any notice of entry and without waiting to be met by a Lend Lease supervisor. Mr Gava and Mr Kalem were not wearing the appropriate PPE.

109    Mr Gava’s defiance of the law and of his obligations as a permit holder is evident in his statement made to Mr Crabb in the passage set out earlier, in his statement in the telephone call made to Mr Gooding at about 8.30 am to the effect that he and his “interstate friends” would be entering the site “whether you like it or not”, and in his response to Mr Gooding when told that the group could not go onto the site, “We’ll be doing whatever we want to do. We will be walking out on site”. Later, Mr Gava told Mr Gooding that, “We are not going to be filling out right of entry notices … that’s come from the Secretary”.

110    Mr Gava and the other members of the group were on the TAFE site from about 10.40 am until 12.20 pm and again from about 1.20 pm to 2.15 pm. I found, at [146], that Mr Gava’s statement to Mr Gooding when told that he could not go onto the site, “look don’t go there Matt” indicated an awareness by him that his conduct was improper.

111    Mr Gava commenced as an organiser with the CFMEU in 2001. He has held an entry permit since that time.

112    It is to Mr Gava’s credit that prior, to 30 October 2013, he had not been found to have contravened s 500, nor any other provision in industrial legislation.

113    It is also to Mr Gava’s credit that he admitted each of his contraventions at the Flinders University and TAFE sites. However, the credit which can be given to him in respect of his admissions of the contraventions at the Flinders University site is limited because they were made only on the morning of the day on which the trial of the Director’s allegations was to commence. Greater credit can be given in respect of Mr Gava’s admission of the contravention of s 500 at the TAFE site because that admission was made in the defence filed on 14 April 2015, some six months before the trial.

114    The Director submitted that penalties in the range $1,000-$1,500 should be imposed on Mr Gava in respect of each of the contraventions of ss 500 and 348 at the Flinders University site and a penalty in the range $1,000-$2,000 in respect of his contravention of s 500 at the TAFE site. The respondents, on the other hand, submitted that a single penalty in the range $1,000-$1,800 should be imposed for the contraventions of ss 348 and 500 at the Flinders University site and a penalty in the range $500-$1,000 for his contravention of s 500 at the TAFE site.

115    The respondents submitted that a single penalty was appropriate in respect of the contraventions at the Flinders University site because they occurred during a single course of conduct. The same submission was made in respect of the contraventions by Mr Kalem and Mr Lomax at the Flinders University site. Counsel emphasised that the conduct constituting the contraventions occurred on the same day, at the same place, and involved the same Lend Lease personnel so that it could properly be said to be part of a single transaction.

116    I do not accept this submission. For the reasons already mentioned, I am not satisfied that this Court is empowered to impose a single penalty in the present context. Section 557(1) does not apply as neither s 348 nor s 500 are included in the subs (2) list of civil remedy provisions to which s 557(1) applies.

117    Further, and in any event, I do not consider that the contraventions of ss 348 and 500 at the Flinders University site on 30 October 2013 can be regarded as part of a single course of conduct. The conduct comprising each contravention was separate and distinct. The contravention of s 500 was constituted by Mr Gava’s conduct in the morning visit. The contravention of s 348 occurred during the afternoon entry. In addition to the two contraventions being separated in time, they do not have any factual elements in common. The mere fact that the s 348 contravention occurred during an (uncharged) unlawful entry onto the Flinders University site does not give rise to the necessary inter-relationship. In these circumstances, it would be inappropriate to treat each contravention as an element in a single course of conduct. Separate penalties should be imposed on Mr Gava in relation to each of his contraventions.

118    Counsel did not submit that Mr Gava’s contraventions of s 500 at the Flinders University site and the TAFE on 30 October 2013 should be regarded as incidents in a single course of conduct. It would in any event be inappropriate to do so. It is true that both contraventions occurred on the same day and while Mr Gava was a member of the same group of CFMEU officials. In addition, the contravening conduct at the TAFE occurred immediately after the group had left the Flinders University site and the conduct constituting each contravention was similar. However, it is evident that at each site Mr Gava and his group made separate and distinct conscious decisions to contravene s 500. That is illustrated by the telephone call which Mr Gava made to Mr Gooding on 30 October 2013. Accordingly, it would be inappropriate to regard the two entries as reflecting a single incursion into unlawful conduct.

119    As already noted, the Director does not allege that Lend Lease suffered quantifiable economic loss as a result of the contraventions at the Flinders University site or the TAFE site on 30 October 2013. Nevertheless, it is appropriate to take into account that work with the crane at the Flinders University site stopped for some 15-20 minutes while the flag was relocated. This was at a time when, on the evidence of Mr Della-Torre, the crane team was “very busy”.

120    Penalties of $1,400 are appropriate in respect of each of Mr Gava’s contraventions of ss 348 and 500 at Flinders University site on 30 October 2013 and a penalty of $1,000 is appropriate in respect of his contravention of s 500 at the TAFE site. This penalty would have been higher but for the willingness to facilitate the course of justice reflected in Mr Gava’s early admission of that contravention.

Mr Kalem (Third Respondent)

121    Penalties are to be imposed on Mr Kalem in respect of his contraventions of ss 348 and 500 at the Flinders University site and for his involvement as an accessory in Mr Gava’s contravention of s 348 at the same site. Although Mr Kalem was a member of the group which entered the TAFE site on the same day, the Director did not allege that he (or Mr Lomax) had contravened the FW Act by that entry.

122    The circumstances of Mr Kalem’s contraventions are set out in the same paragraphs of the Liability Judgment to which I referred in relation to Mr Gava.

123    On my findings, Mr Kalem was one of the members of the group who took the lead in insisting that the CFMEU flag be flown on the site crane. During the morning visit, he told Mr Crabb, “we want the flag flown … it better be flying by lunchtime”. In the afternoon visit, Mr Kalem told Mr Crabb, “if you don’t put [the flag] up there we’ll bring back 10 brothers tomorrow and stop the job”. Later, just before leaving the site at 3 pm, Mr Kalem told Mr Crabb, “the flag had better be up there tomorrow or there will be trouble”.

124    Mr Kalem’s conduct in contravention of s 500 comprised his entering the Flinders University site without having provided a notice of entry and without having obtained permission to do so, remaining on the site for an hour and 40 minutes, and distracting workers by speaking to them while they were carrying out their work.

125    Mr Kalem commenced employment as an organiser with the CFMEU in February 2013. He was granted an entry permit by the FWC in March 2013. Although the subject contravention occurred only eight months later, it is to Mr Kalem’s credit that, as at 30 October 2013, he had not been found to have contravened industrial legislation on any previous occasion. Nor, for that matter, has he been found to have contravened industrial legislation since that date.

126    Unlike Mr Gava, Mr Kalem did not admit his contraventions and so credit cannot be given to him on that account.

127    The respondents submitted that all of Mr Kalem’s contraventions should be regarded as having occurred during a single course of conduct. For the reasons which I gave in relation to Mr Gava, I do not consider it appropriate for Mr Kalem’s contraventions of s 348 and s 500 to be treated as incidents in a single course of conduct.

128    Mr Kalem’s liability pursuant to s 550 of the FW Act for his involvement in Mr Gava’s contravention of s 348 stands differently. I consider it appropriate to regard Mr Kalem’s own conduct contravening s 348 and his conduct in being knowingly concerned in Mr Gava’s contravention of the same provision to form part of the one transaction. Both were contributing, almost simultaneously, to the coercion of Mr Crabb. By his statements, Mr Kalem was himself coercing Mr Crabb, but also lending support to the coercion of Mr Crabb by Mr Gava. In these circumstances, I consider that Mr Kalem’s conduct should be regarded as part of a single course of conduct. This will permit account to be taken of the aspects of his conduct which were common to each contravention, and thereby to avoid penalising twice for the same conduct.

129    I will give effect to this conclusion by imposing separate penalties in respect of the three contraventions, but a reduced penalty in respect of Mr Kalem’s liability pursuant to s 550.

130    The Director submitted that a penalty in the range $1,500-$2,500 was appropriate in respect of Mr Kalem’s contravention of s 500, a penalty in the range $1,000-$1,250 in respect of his contravention of s 348, and a penalty of $1,000-$1,250 in respect of his liability as an accessory. The respondents submitted that a single penalty in the range $1,200-$1,800 was appropriate.

131    I consider penalties of $1,500 to be appropriate in respect of the contraventions of s 500 and s 348 and a penalty of $750 in respect of Mr Kalem’s accessorial involvement in Mr Gava’s contravention of s 348.

Mr Lomax (Fourth Respondent)

132    Penalties are to be imposed on Mr Lomax in respect of his contravention of s 500 at the Flinders University site on 30 October 2013 and for his involvement as an accessory in the contraventions of s 348 by Mr Gava and Mr Kalem.

133    Mr Lomax commenced as an organiser with the CFMEU on 1 November 2010 and continued until 23 June 2011. He resumed employment with the CFMEU as an organiser on 1 July 2012 and remains in that position. He has held an entry permit throughout his employment. The respondents submitted (and the Director did not contest) that Mr Lomax has not previously been found to have contravened any industrial law. That is to his credit.

134    The circumstances of Mr Lomax’s contravention of s 500 at the Flinders University site on 30 October 2013 are set out in the paragraphs in the Liability Judgment to which I referred earlier. The circumstances giving rise to his accessorial liability in respect of the contraventions of s 348 are set out at [107]-[115] of the same judgment. There is no evidence that Mr Lomax himself made any statement by way of coercion to Mr Crabb, but he did return with the other CFMEU officials in the afternoon and was present when coercive conduct occurred, did not disassociate himself from any of the statements made by his colleagues, and accompanied the CFMEU officials onto the site. He was present when Mr Gava spoke to Mr Della-Torre and insisted that the flag be relocated. I found at [113] that he had thereby implicitly lent his support to what Mr Gava had said and, further, that he had assisted Mr Timms to attach the flag to the crane hook.

135    For the reasons which I have given in relation to Mr Gava and Mr Kalem, I do not accept the respondents’ submissions that the contraventions of Mr Lomax should be regarded as part of a single course of conduct. Separate penalties should be imposed for the contraventions of ss 500 and 348.

136    The Director submitted that a penalty in the range of $2,500 to $3,500 should be imposed on Mr Lomax for his contravention of s 500 and a penalty in the range $1,000-$1,500 for his contravention as an accessory. The respondents submitted that a single penalty in the range $1,000-$1,800 should be imposed.

137    The Director’s submissions did not indicate any basis for distinguishing between the penalties imposed on Mr Kalem and Mr Lomax for their respective contraventions of s 500 and s 348 and none has been identified. I consider that penalties of $1,500 should be imposed on Mr Lomax for each contravention.

Mr O’Connor (Fifth Respondent)

138    A penalty is to be imposed on Mr O’Connor in respect of his contravention of s 500 with Mr Beattie at the Convention Centre site on 30 October 2013. The circumstances of the contraventions of Mr O’Connor and Mr Beattie are set out in the Liability Judgment at [148]-[175]. Each of Mr O’Connor and Mr Beattie contravened s 500 by failing to provide a notice of entry, by insisting on remaining on the Convention Centre site after they had been asked to comply with the s 487 requirement by Mr McMahon, by holding discussions with workers on the site, and by holding those discussions as they walked around the site rather than in the lunchroom or other places agreed by Lend Lease and only during the workers’ breaks.

139    As with several of the other respondents, it is to Mr O’Connor’s credit that as at 30 October 2013, he had not previously been found to have contravened any industrial laws. However, Mr O’Connor has been dealt with by courts since 30 October 2013 for several contraventions. In DFWBII v Cartledge, Mansfield J imposed penalties of $1,500 and $4,500 on Mr O’Connor in respect of contraventions of s 500 of the FW Act on 19 and 20 March 2014 at a construction site at 50 Flinders Street, Adelaide. There are other proceedings presently before the Court relating to contraventions (or alleged contraventions) by Mr O’Connor of s 500 occurring before the imposition of the penalty by Mansfield J on 2 October 2014. In addition, on 1 May 2015, Mr O’Connor consented to an order, on an application made by the Director pursuant to s 510 of the FW Act, suspending his entry permit for a period of six months commencing on 4 May 2015.

140    The respondents submitted that the circumstance that Mr O’Connor’s other contraventions had occurred before the decision in DFWBII v Cartledge meant that the penalties imposed on 2 October 2014 could be regarded as having deterred Mr O’Connor from engaging in further contraventions of s 500 with the consequence that specific deterrence need not be an element in the fixing of the penalty in his case.

141    I will take into account that Mr O’Connor has not been found to have contravened s 500 on any occasion after 13 May 2014 but do not accept that that means that personal deterrence need not be an element of the penalty in his case. The contrary is so. It is sufficient to mention that, on 25 March 2014, this Court issued an interim injunction restraining a number of persons, including Mr O’Connor, from attending the Hansen Yuncken Pty Ltd project at 50 Flinders Street as well as the new Royal Adelaide Hospital site unless lawfully exercising, or seeking to exercise, rights in accordance with Pt 3-4 of the FW Act. On 13 May 2015, Mansfield J found, following a trial, that Mr O’Connor had failed to comply with the injunction issued on 13 May 2014 and had thereby committed a contempt of this Court: DFWBII v Cartledge [2015] FCA 453. Subsequently, on 14 August 2015, Mansfield J ordered that Mr O’Connor pay a monetary penalty of $12,000 in respect of his contempt in addition to the Director’s costs: DFWBII v Cartledge (No 2) [2015] FCA 851. I mention this not to indicate that Mr O’Connor is to be punished again for that contempt but as an indication that specific deterrence remains an important consideration in Mr O’Connor’s case.

142    Counsel for the respondents submitted that Mr O’Connor and Mr Beattie had not behaved in an aggressive or overbearing manner and that this was mitigatory. I accept in general terms this characterisation of the conduct of Mr O’Connor and Mr Beattie. However, I do not regard it as mitigatory. It means only that what would otherwise be an aggravating circumstance was not present. It is also appropriate to take into account that Mr O’Connor and Mr Beattie were frankly dismissive of Mr McMahon’s statement that they could not enter the site without having provided notice of entry and Mr O’Connor made it plain that, irrespective of the Lend Lease attitude, the CFMEU officials would be entering the site.

143    The Director proposed a penalty in the range $1,000-$3,000 whereas as the respondents submitted that a penalty in the range $500-$1,000 would be appropriate.

144    I consider a penalty of $1,800 to be appropriate, and that is the penalty I impose.

Mr Beattie (Sixth Respondent)

145    Penalties are to be imposed on Mr Beattie in respect of his contraventions of s 500 at the Convention Centre site on 30 October 2013 and the Adelaide Oval site on 31 October 2013.

146    In relation to the former, I refer to what I have set out above in relation to Mr O’Connor. In relation to the latter, the circumstances of the contravention by Mr Beattie (and Mr McDermott and Mr Long) of s 500 at the Adelaide Oval site on 31 October 2013 are set out at [220]-[233] of the Liability Judgment. Mr Beattie contravened s 500 on this occasion by entering the Adelaide Oval site without providing a notice of entry, and by remaining on the site and holding discussions with workers.

147    Mr Long and Mr Beattie were, by their presence, party to Mr McDermott’s dismissive conduct towards Mr Jackson and they acted in defiance of his statement that they were not permitted to enter the site. I accept, however, that Mr Long and Mr Beattie appear otherwise to have conducted themselves in a polite fashion and that, when they spoke to the workers, it was in the lunchroom and during the workers’ break.

148    Mr Beattie has a history of prior contraventions of industrial legislation, although he had not previously contravened s 500. On 19 August 2011, the then Federal Magistrates Court imposed a penalty of $1,000 on Mr Beattie for a contravention s 503 of the FW Act (misrepresenting that something was authorised by the Act): White v Benstead, Beattie and CFMEU [2011] FMCA 920. Mr Beattie had misrepresented to police who had been called to a building site on 14 August 2009 that he had a right to be there, when he had no such right.

149    On 31 May 2013, Jessup J imposed a penalty of $5,000 on Mr Beattie for his conduct in encouraging and persuading a mobile crane crew not to enter a building site on 2 September 2011 with the intention of coercing an employer to reinstate a dismissed employee: DFWBII v CFMEU [2013] FCA 515.

150    On 3 October 2013, less than one month before the subject contraventions, Jessup J imposed a penalty of $2,500 on Mr Beattie for his conduct in organising industrial action prior to the nominal expiry date of an enterprise agreement, in contravention of s 417(1)(a) of the FW Act: DFWBII v CFMEU [2013] FCA 981. The contravention had occurred on 8 and 9 July 2010.

151    The respondents submitted that these previous contraventions had occurred at a time well distant from the current contraventions and, as I understood it, should be ignored for present purposes. I do not accept that submission. In the first place, I do not regard contraventions occurring as recently as 2009, 2010 and 2011 as being well distant in time from contraventions occurring in late 2013. I accept of course that the provisions previously contravened by Mr Beattie were different in kind from s 500. Nevertheless, I consider that it is appropriate to have regard to Mr Beattie’s previous record. As noted earlier, a history of contraventions of other provisions may indicate an attitude of defiance, or indifference, to compliance with the law so as to make considerations of personal deterrence particularly important in the fixing of a penalty. I consider that is so in the present case.

152    I accept that Mr Beattie’s conduct on 31 October 2013 at the Adelaide Oval appears to have been more passive than his conduct at the Convention Centre on the previous day.

153    The Director submitted that penalties in the range $2,000-$3,000 should be imposed on Mr Beattie in respect of each contravention. The respondents submitted that a penalty in the range $1,000-$2,000 was appropriate for the contravention on 30 October and a penalty in the range $800-$1,400 for the contravention on 31 October 2013.

154    I consider that a penalty of $2,800 should be imposed on Mr Beattie in respect of his contravention at the Convention Centre site and a penalty of $2,500 in respect of his contravention at the Adelaide Oval site on the following day. It was not submitted that either of these penalties should be moderated on account of the totality principle and, in any event, I consider that it would be inappropriate to do so.

Mr McDermott (Seventh Respondent)

155    Penalties are to be imposed on Mr McDermott in respect of his contraventions of s 500 of the FW Act at the Adelaide Oval site on 30 October 2013, 31 October 2013 and 12 November 2013 and for his contravention of s 499 of the FW Act on 13 November 2013.

156    The circumstances of the contravention of s 500 by Mr McDermott (and the other CFMEU officials who entered with him) at the Adelaide Oval site on 30 October 2013 are set out in the Liability Judgment at [177]-[204]. A group of six CFMEU officials entered the Adelaide Oval site at about 8.40 am and remained on the site until approximately 1.35 pm. None had provided notices of entry. They all defied Mr Ising’s challenge that they had no right to enter without having provided the requisite notice. Whilst on the site, the CFMEU officials addressed workers on two separate occasions, but I accept that these meetings occurred during the workers’ breaks and in the lunchrooms.

157    In the principal judgment, I found that some of the CFMEU officials had spoken aggressively and rudely but accept that there is no evidence that Mr McDermott was one of those who had acted in that way. Indeed, Mr Ising’s evidence was that Mr Dermott had not been aggressive. I take into account, however, Mr Jackson’s perception that the group generally had behaved in an arrogant, high handed and dismissive way. There is no indication that Mr McDermott moved to disassociate himself from the conduct of others in this respect, or to influence them to moderate their behaviour.

158    Mr McDermott’s position as Assistant Secretary of the Construction and General Division of the CFMEU in South Australia is an aggravating circumstance. This is a senior position. It may be taken that Mr McDermott had the ability thereby to influence the behaviour of the organisers who accompanied him. Earlier, I accepted that Mr McDermott’s involvement was evidence of the concerted campaign alleged by the Director. It is a serious matter that a senior member of a union shows such deliberate defiance of the requirements of the FW Act in relation to the exercise of rights of entry. Instead of promoting compliance by CFMEU employed organisers with the law, Mr McDermott’s conduct operated to induce contraventions by those for whom he had some responsibility.

159    Mr McDermott has contravened a provision in the FW Act on one previous occasion. On 5 March 2014 (ie, after the subject contraventions), this Court imposed a penalty of $1,320 on him for a contravention of s 355 of the FW Act (coercive conduct) on 22 June 2012 by organising employees of a contractor to agree not to work until another employee had been reinstated and by threatening that the employees would not work until the employee had been reinstated. Although s 355 proscribes conduct of a kind which is different from that proscribed by s 500, I do consider that this contravention is pertinent presently. It underlines the need for the penalties imposed on Mr McDermott to reflect personal deterrence.

160    I note that Mr McDermott has contravened s 500 on subsequent occasions but they are, or have been, the subject of separate proceedings. He is not of course to be punished again for these contraventions but they do indicate, at the least, the need for the penalties for the current contraventions to reflect personal deterrence.

161    It is to Mr McDermott’s credit that he admitted his contraventions of s 500 at the Adelaide Oval site on 30 and 31 October 2013. In particular, credit is to be given to Mr McDermott in respect of his admission of his contravention of s 500 at the Adelaide Oval site on 30 October 2013 as that admission was made in the defence filed on 14 April 2015, six months before the trial. However, his admission of the contravention of s 500 on 31 October was made only on the morning of the first day of trial and after the Director had assembled his evidence. I accept that Mr McDermott’s admission is an indication of his willingness to facilitate the course of justice but the lateness of the admission diminishes the credit which he can be given on that account. No corresponding credit can be given to Mr McDermott in respect of the contravention of s 500 on 12 November 2013 and of s 499 on 13 November 2013 as he put the Director to proof of those matters.

162    On 30 October 2013, Mr McDermott’s contravention of s 500 comprised his entry without having provided notice and his holding of discussions with workers on the site. He defied Mr Ising’s challenge that he had not provided a notice of entry. Mr McDermott was on the Adelaide Oval site from about 8.40 am to about 1.35 pm. On 31 October 2013, Mr McDermott’s contravention of s 500 comprised his entry to Adelaide Oval without having provided notice of entry and without having permission to do so, defying Mr Jackson’s statement that he (and Mr Beattie and Mr Long) were not permitted to enter, defying directions given to him by Mr Jackson whilst he was on the site, remaining on the site for approximately half an hour before returning to the group and holding discussions with workers for about 10-15 minutes. All in all Mr McDermott was on the Adelaide Oval site on 31 October 2013 for about two hours. I accept, however, that the meetings with the workers occurred during their respective breaks from work.

163    On 12 November 2013, Mr McDermott contravened s 500 by entering the Adelaide Oval site without having provided notice of entry, by refusing to produce his right of entry permit when requested by Mr Jackson, by remaining on the site despite Mr Jackson having asked Mr Stephenson and him to leave and by holding discussions with workers on the site at places which had not been agreed.

164    On 13 November 2013, Mr McDermott contravened s 499 by failing to comply with the reasonable request from Lend Lease that he comply with an occupational health and safety requirement, namely, to remain outside an area marked as an exclusion zone and by encouraging a ball retriever to come to him whilst he was in the exclusion zone. I take into account that the direction by Lend Lease was made by implication, that is, that Mr McDermott did not defy an express request or instruction, and that Mr McDermott responded immediately to the rebuke by Mr Jackson and the other workers. He was in the exclusion zone only for a very short time. I also have the impression that Mr McDermott’s contravention of s 499 may have been unwitting. It is unfortunate that Mr McDermott sought to induce a worker to come into the exclusion zone.

165    I note that on 1 May 2015, Mr McDermott consented to an order by the FWC suspending his entry permit for a period of six months commencing on 4 May 2015: DFWBII v Bolton [2015] FWC 3042.

166    The Director submitted that a penalty in the range $1,250-$1,750 should be imposed on Mr McDermott in respect of each of the four contraventions. The respondents contended instead for a penalty in the range of $800-$1,400 for each contravention.

167    I consider that the range proposed by the Director for the s 500 contraventions is inadequate. The maximum of $1,750 proposed by the Director is less than the maximum he proposed in respect of those respondents who were employed organisers and who had not contravened industrial legislation at all before 30 October 2013. The suggested maximum of $1,750 does not reflect the additional culpability of Mr McDermott arising from his senior position. Subject to the application of the totality principle, I consider that a penalty of $3,300 is appropriate for the contravention on 30 October 2013 and a penalty of $3,750 for the contravention of s 500 on 31 October. The lower penalty for the 30 October contravention reflects Mr McDermott’s early admission of that contravention. A lower penalty of $3,000 is appropriate for the contravention of s 500 on 12 November as that did not form part of the concerted campaign and its duration was shorter. A penalty of $1,000 is appropriate for the contravention of s 499.

168    However, having regard to the principle of totality and because I consider that some of the personal deterrent effect to be achieved by the later penalties for the s 500 contraventions may be achieved by the earlier penalties, I will moderate these figures. The penalty of $3,300 for the contravention of s 500 on 30 October 2013 stands, but in respect of the contravention of s 500 on 31 October 2013, a penalty of $3,400 is imposed, and in respect of the contravention of s 500 on 12 November 2013, a penalty of $2,000 is imposed. The penalty of $1,000 for the contravention of s 499 on 13 November 2013 stands.

Mr Long (Eighth Respondent)

169    Penalties are to be imposed on Mr Long for his contraventions of s 500 at the Adelaide Oval site on 30 and 31 October 2013. The circumstances of those contraventions are set out in the Liability Judgment in the paragraphs to which I referred in relation to Mr McDermott, namely, [177]-[204] and [220]-[233]. Mr Long’s contraventions of s 500 were comprised on his entering the site without having provided a notice of entry and without permission, his defiance of the respective challenges by Mr Ising and Mr Jackson and by his being one of the group which held discussions with workers on the site on each day.

170    Mr Long is employed by the CFMEU as an organiser. He has no prior contraventions of s 500.

171    However, on 7 March 2011, Kenny J imposed a single penalty of $5,000 on Mr Long for contraventions of ss 38 and 43 of the BCII Act on 28 May 2008: White v CFMEU [2011] FCA 192. Mr Long had contravened s 38 by engaging in unlawful industrial action and s 43 by organising or taking action with the intention of coercing an employer to employ employees who had been made redundant and to allocate particular responsibilities to those employees. Although contraventions of s 500 involve conduct which is different from such conduct, I do consider it appropriate to have regard to Mr Long’s record in this respect.

172    The Director also referred to two other matters in which the Court has imposed penalties for contraventions of ss 38 and 43 of the BCII Act. These were Gregor v CFMEU [2011] FCA 808 (Marhsall J) and DFWBII v CFMEU [2013] 1014 (Gordon J). The reasons in each of those cases record admissions by the CFMEU that Mr Long had engaged in particular conduct amounting to contraventions of ss 38 and 43 even though he had not been charged personally with those contraventions. As the admissions in those cases were made by the CFMEU and not by Mr Long personally, he is not, strictly speaking, bound by them. However, the respondents did not dispute the Director’s submission that it was appropriate for the Court to have regard to these two matters when considering penalty in Mr Long’s case. That being so, I will take them into account as part of Mr Long’s history.

173    The respondents emphasised the evidence from Mr Jackson that his interactions with Mr Long on 30 October 2013 had been cordial and polite. They also submitted that there had been no contravention of industrial legislation alleged against Mr Long since an occurrence on 20 May 2014 which, it was said, that indicated a determination on his part to comply with industrial law.

174    The Director submitted that penalties in the range $2,000-$3,000 were appropriate for each of Mr Long’s contraventions. The respondents on the other hand submitted that penalties in the range of $800-$1,400 were appropriate in each case.

175    Mr Long’s record makes it appropriate for a higher penalty to be imposed on him than I have imposed on other organisers. I consider that the penalties of $2,200 are appropriate for each of the contraventions. There should not be any reduction for totality.

Mr Harrison (Ninth Respondent)

176    A penalty is to be imposed on Mr Harrison in respect of a single contravention on s 500 on 30 October 2013. The circumstances of that contravention have been set out in what I have said above concerning Mr McDermott and Mr Long.

177    Mr Harrison was employed by the CFMEU as an organiser in the period 5 May 2008 to 21 February 2014. He held an entry permit throughout that period. It is to his credit in this circumstance that he has no record of a previous contravention of any industrial law. The respondents submitted that, as Mr Harrison has resigned from his employment as an organiser with the CFMEU, personal deterrence is less important in his case. I accept that that is so.

178    I take into account that, although part of the CFMEU group which contravened s 500 on 30 October, Mr Harrison does not appear to have played an active role.

179    The Director submitted that a penalty in the range $1,000-$3,000 should be imposed on Mr Harrison whereas the respondents contended for a penalty in the range $400-$600. I consider that a penalty of $1,200 is appropriate.

Mr Roberts (Tenth Respondent)

180    A penalty is to be imposed on Mr Roberts in respect of his contravention of s 500 of the FW Act at the Adelaide Oval site on 30 October 2013.

181    I have referred earlier to the passages in the Liability Judgment in which the circumstances of Mr Roberts’ contravention are described. It is appropriate however, to mention some features of Mr Roberts’ conduct which differentiate his position from that of his colleagues.

182    On my findings, at [196], Mr Roberts behaved in an aggressive and threatening manner towards Mr Ising in the conversation at about 12.10 pm. Again, at about 1.15 pm, Mr Roberts behaved in an aggressive, loud and rude manner and, on my findings, raised a complaint which was baseless. The penalty to be imposed on Mr Roberts should take account of these aspects of his conduct.

183    Mr Roberts commenced as an organiser with the CFMEU in 2001 and has held an entry permit ever since. It is to his credit that he has no previous record of contraventions of industrial laws. It is also to Mr Roberts’ credit that he made an early admission of his contravention, although I note that that admission did not extend to all aspects of his conduct alleged by the Director.

184    The respondents also submitted, and the Director did not dispute, that Mr Roberts has not been found to have contravened any industrial law since 30 October 2013.

185    The Director submitted that a penalty in the range of $2,000-$4,000 is appropriate in the case of Mr Roberts. The respondents on the other hand contended for a penalty in the range $1,500-$2,500. I consider that the aggressive and threatening behaviour of Mr Roberts should be reflected in a higher penalty than would otherwise have been appropriate. I impose a penalty of $2,200.

Mr Stephenson (Eleventh Respondent)

186    Penalties are to be imposed on Mr Stephenson in respect of his contraventions of s 500 at the Adelaide Oval site on 30 October 2013 and 12 November 2013. The circumstances of those contraventions are set out in the passages in the Liability Judgment to which I referred in relation to Mr McDermott.

187    Mr Stephenson’s contravention of s 500 on 30 October 2013 was comprised of his entering the Adelaide Oval site without providing notice of entry and without permission, his defiance of Mr Ising’s challenge, and his remaining on site and holding discussions with workers. His contravention on 12 November 2013 was comprised of his conduct in entering without providing a notice of entry, remaining on the site despite Mr Jackson having asked him to leave, and his holding of discussions with workers.

188    It is to Mr Stephenson’s credit that he admitted the contraventions in the defence filed on 14 April 2015, six months before the trial, and that as at October and November 2013, he had not been found to have contravened any industrial laws. Mr Stephenson has contravened s 500 on later occasions, but they are, or have been, the subject of separate penalty proceedings.

189    I accept the respondents’ submission that there is no indication that Mr Stephenson behaved in an aggressive or threatening manner during either of his unauthorised entries.

190    Mr Stephenson is no longer employed by the CFMEU. He has not worked for the CFMEU or any other union since July 2014 and does not hold a permit under Pt 3-4. Medical evidence indicates that Mr Stephenson has a permanent disability resulting from a lumbar disc herniation which affects his ability to engage in physical work. I accept that it is unlikely that Mr Stephenson will work again as a union organiser and that this reduces the need for specific deterrence to be a prominent consideration in the fixing of penalty in his case.

191    The Director contended that a penalty in the range $1,500-$2,500 was appropriate for each contravention whereas the respondents contended for penalties in the range $400-$600. I consider that a penalty of $1,500 is appropriate for each contravention. The premeditated nature of the first contravention may suggest that the penalty for the first contravention should be higher than the second but I take into account that a second contravention will usually attract a higher penalty than the first and that the contravention on 12 November 2013 was Mr Stephenson’s second at the Adelaide Oval site. There should be no reduction for totality.

The CFMEU (First Respondent)

192    As already noted, in the imposition of penalties on the CFMEU, the element of deterrence must be particularly prominent. The CFMEU record (relevantly before October 2013) indicates that that must be so. Its record since October/November 2013 indicates that the Court cannot grant leniency by reason of the CFMEU having recognised the error of its ways and is now complying with its obligations under the FW Act.

193    It is particularly relevant, in my opinion, that the contraventions on 30 and 31 October 2013 occurred as part of a concerted campaign by the CFMEU, which indicates the involvement of its senior personnel; that one of its senior officials, Mr McDermott, was a participant in a number of the contraventions (thereby encouraging contraventions by others, rather than exercising his influence to avoid the contraventions); and that the CFMEU has not provided any evidence that it has instructed or trained its organisers with a view to avoiding further contraventions.

194    I accept the submission of the Director that the CFMEU is a large, prominent and influential national union. There is no evidence of incapacity on the part of the CFMEU to pay the penalties proposed by the Director.

195    The CFMEU submitted that the multiple contraventions of s 500 occurring at the Flinders University site on 30 October 2013, the TAFE site on 30 October 2013, the Convention Centre site on 30 October 2013, the Adelaide Oval site on 30 October 2013, the Adelaide Oval site on 31 October 2013, and the Adelaide Oval site on 12 November 2013 should, in each case, be treated as a single course of conduct. That is to say, the CFMEU submitted that there were six separate courses of conduct. It then submitted that a single penalty should be imposed for each such course of conduct.

196    I am willing to accept that submission in part, namely, that the identified contraventions of s 500 involved six separate courses of conduct. However, for the reasons already mentioned, that acceptance does not have the consequence that the Court should impose a single penalty in respect of each separate course of conduct. The Court has no statutory authority to do so. Even if it did, it would still be necessary to consider whether, having regard to the circumstances of the contraventions at each site, a single penalty is appropriate.

197    My satisfaction that the contraventions of s 500 at each site constituted separate courses of action does require the Court to consider whether there should be any moderation of the separate penalties imposed on the CMFEU in respect of each of the contraventions it is taken to have committed. As will be seen, I do not consider that that is appropriate.

Flinders University site

198    Penalties are to be imposed on the CFMEU in respect of its contraventions of s 500 constituted by the conduct of Mr Gava, Mr Kalem and Mr Lomax in their first entry onto the Flinders University site on 30 October 2013; in respect of its two contraventions of s 348 constituted by the conduct of Mr Gava and Mr Kalem on the afternoon of 30 October 2013; in respect of its contravention of s 348 constituted by the knowing involvement of Mr Lomax in the contraventions by Mr Gava and Mr Kalem of s 348; and in respect of its contravention of s 348 constituted by Mr Kalem’s knowing involvement in the contravention of s 348 by Mr Gava.

199    I do not regard the CFMEU contraventions of s 500 and of s 348 as part of a single course of conduct. My reasons are similar to those which I gave in relation to the corresponding submission made in respect of the individual respondents. The contraventions occurred at different times on 30 October 2013; were constituted by different conduct; and the legal and factual elements of the two kinds of contraventions are dissimilar.

200    Further, I do not consider it appropriate to moderate the penalties imposed on the CFMEU for its contraventions of s 500 by reason of my acceptance that the three s 500 contraventions constituted part of a course of conduct. The CFMEU can be taken to have known that the unauthorised entry by each official would constitute a separate contravention of s 500, and it must have intended that that occurred. Further, it is not to be overlooked that there was a fourth CFMEU official involved, Vern, and that another unidentified CFMEU official joined the group later. The CFMEU must have intended that this number of officials attend the Flinders University site in order to make its point more forcefully to Lend Lease. In other words, the CFMEU intended that there be multiple contraventions and sought by doing so to pursue its own purposes. This should be reflected in the penalties to be imposed.

201    The Director proposed that penalties in the range $25,500-$35,700 be imposed on the CFMEU in respect of each of the s 500 and s 348 contraventions by the CFMEU at the Flinders University site. The respondents proposed instead a single penalty for all those contraventions in the range of $50,000-$120,000.

202    Contrary to the submissions of the respondents, I do not regard the s 500 contraventions or, for that matter, any of the other s 500 contraventions of the CFMEU, as being at the lower end of the scale. Those at the Flinders University, TAFE, Convention Centre and Adelaide Oval sites (in the last case on 30 and 31 October 2013) constituted flagrant breaches of s 500 and the penalties should reflect that fact. The breaches of s 348 at the Flinders University site cannot be regarded as at the lower end of the scale either.

203    I consider that a penalty of $22,500 should be imposed on the CFMEU in respect of the contravention of s 500 constituted by Mr Gava’s conduct and a penalty of $25,000 imposed in respect of each of the contraventions constituted by the conduct of Mr Kalem and Mr Lomax. The lower figure in the case of the first contravention is to take account of the CFMEU’s admission of that contravention.

204    As with contraventions of s 500 of the FW Act, the CFMEU has a significant record of contravening coercion provisions in the FW Act and its predecessors. A table provided by the Director shows that, prior to November 2013, the CFMEU and/or its officials were dealt with by courts on 25 occasions for contraventions involving coercive conduct. Those 25 cases involved 85 contraventions by individual officials and 62 by the CFMEU itself.

205    The Director’s table also shows that, since 2013, the CFMEU and/or its officials have been dealt with by courts on 17 occasions for contraventions of coercion provisions. Those 17 cases involved 51 contraventions by individual officials and 47 by the CFMEU itself.

206    The contraventions of s 348 at the Flinders University site involved a persistent disregard of the rights of Lend Lease, a false statement by Mr Gava, and interference and disruption with the performance of work on the site. In my opinion, a penalty of $22,500 is appropriate in respect of the contravention of s 348 constituted by Mr Gava’s conduct. This penalty is less than would otherwise have been the case by reason of the admission, albeit belated, by the CFMEU of this contravention.

207    In respect of each of the contraventions of s 348 constituted by Mr Kalem’s conduct and by Mr Lomax’s knowing involvement in the contraventions of Mr Gava and Mr Kalem, I impose penalties of $25,000. In respect of the contravention of s 348 constituted by Mr Kalem’s knowing involvement in Mr Gava’s contravention, I impose a penalty of $12,500. This is reduced so as to avoid imposing a double penalty in respect of the conduct of Mr Kalem constituting this contravention.

TAFE site

208    A penalty is to be imposed on the CFMEU in respect of its contravention of s 500 constituted by the conduct of Mr Gava.

209    The Director submitted that a penalty in the $25,500-$35,700 was appropriate whereas the respondents contended for a penalty in the range $5,000-$10,000.

210    I consider that a penalty of $20,000 is appropriate taking into account, in particular, that this contravention occurred as part of the CFMEU concerted campaign but also the early admission by the CFMEU of the contravention.

Convention Centre site

211    Penalties are to be imposed on the CFMEU in respect of its contraventions of s 500 at the Convention Centre site constituted by the conduct of each of Mr O’Connor and Mr Beattie. Again, the Director contended for penalties in the range $25,500-$35,700. The respondents contended for a single penalty in the range $20,000-$30,000.

212    I accept that these two contraventions occurred as part of a single course of conduct but do not consider that any moderation of either penalty is warranted on that account. These were deliberate contraventions committed as part of the concerted campaign.

213    For the reasons already given, a single penalty cannot be imposed. I consider that two penalties of $23,000 should be imposed. This is slightly less than that at the other sites because the behaviour of Mr O’Connor and Mr Beattie does not seem to have involved an affront to the same degree to the rights of Lend Lease or to Mr McMahon.

214    I do not consider that any moderation of the penalties is warranted by reason of the totality principle.

Adelaide Oval site – 30 October 2013

215    Penalties are to be imposed on the CFMEU in respect of the contraventions of s 500 at the Adelaide Oval site on 30 October 2013 constituted by the conduct of Mr McDermott, Mr Long, Mr Harrison, Mr Roberts and Mr Stephenson.

216    The Director contended for penalties in the range $25,500-$35,700 in respect of each of these contraventions. I add that the Director sought penalties in the same range in respect of the contraventions of s 500 at the Adelaide Oval site which occurred on 31 October and 12 November 2013 and in respect of the contravention of s 499 of the FW Act on 13 November 2013.

217    The respondents submitted that a single penalty in the range $77,250-$103,000 was appropriate in respect of the five contraventions of s 500 on 30 October 2013. For the reasons already given, single penalties cannot be imposed.

218    Account must be taken in the fixation of the penalties of the early admission by the CFMEU of its contraventions of s 500 constituted by the conduct of Mr McDermott, Mr Roberts and Mr Stephenson. On the other hand, the CFMEU’s contravention constituted by Mr McDermott’s conduct is more serious having regard to the seniority of the position he held. Likewise, the contravention constituted by Mr Roberts conduct is to be treated more seriously having regard to the aggressive, threatening and rude conduct involved.

219    Having regard to these considerations, penalties of $22,500 are imposed on the CFMEU in respect of the contraventions constituted by the conduct of each of Mr McDermott and Mr Roberts, a penalty of $20,000 in respect of the contravention constituted by the conduct of Mr Stephenson, and penalties of $25,000 in respect of the contraventions constituted by the conduct of Mr Long and Mr Harrison. I have not thought it appropriate to moderate those figures on account of the contraventions occurring as part of a single course of conduct. Nor, standing back and looking at the penalties, do I consider it appropriate to moderate them on account of the principle of totality.

Adelaide Oval site – 31 October 2013

220    Penalties are to be imposed on the CFMEU in respect of its contraventions of s 500 at the Adelaide Oval site on 31 October 2013 constituted by the conduct of Mr McDermott, Mr Beattie and Mr Long.

221    The respondents contended for a single penalty in respect of these three contraventions in the range $30,900-$38,625.

222    Credit is to be given to the CFMEU in respect of its admission on the morning of the first day of trial of its contravention constituted by Mr McDermott’s conduct. Again, however, the penalty imposed on the CFMEU in respect of that contravention must take account of the fact that the CFMEU’s contravention was constituted by the conduct of one of its senior officials and occurred as part of the CFMEU concerted campaign. When account is taken of that circumstance, and after giving the CFMEU some credit for its admission in respect of Mr McDermott’s conduct, I consider that penalties of $25,000 should be imposed in respect of each of these three contraventions. I do not consider that the totality principle makes it appropriate to reduce any of these penalties.

Adelaide Oval site – 12 November 2013

223    Penalties are to be imposed on the CFMEU in respect of its contraventions of s 500 of the FW Act at the Adelaide Oval site on 12 November 2013 constituted by the conduct of Mr McDermott and Mr Stephenson.

224    The respondents submitted that a single penalty in the range $20,600-$30,900 was appropriate. For the reasons already given, separate penalties must be imposed.

225    The CFMEU is entitled to credit on account of its early admission of its contravention constituted by the conduct of Mr Stephenson on this occasion.

226    For the reasons given with respect to the other contraventions, I am not satisfied that the circumstance that these two contraventions occurred as part of a single course of conduct should lead to a moderation of the penalty. I take into account, however, that the entries on 12 November 2013 do not seem to have been part of the same concerted campaign which led to the earlier contraventions. However, the circumstance that the contravention constituted by Mr McDermott’s conduct was committed by one of the CFMEU’s senior officials is an aggravating circumstance.

227    I consider that a penalty of $22,500 is appropriate in the case of the contravention constituted by Mr McDermott’s conduct and a penalty of $15,000 in respect of the contravention constituted by Mr Stephenson’s conduct. The lower figure in Mr Stephenson’s case reflects, in particular, the early admission by the CFMEU of that contravention.

Adelaide Oval site – 13 November 2013

228    A penalty is to be imposed on the CFMEU in respect of its contravention of s 499 constituted by Mr McDermott’s conduct.

229    The Director contended for a penalty in the same range which he had sought in relation to the contraventions of s 500, namely, $25,500-$35,700. The respondents contended for a penalty in the range $10,300-$15,450.

230    As indicated in the case of Mr McDermott, I proceed on the basis that this contravention appears to have been unwitting, was short-lasting and involved non-compliance with an implied, rather than express, request.

231    Having regard to the nature of the contravention, I consider that the penalty ranges proposed by the parties are excessive. A penalty of $5,000 is imposed.

Consideration of the totality principle

232    The aggregate of the penalties imposed on the CFMEU in respect of the 11 contraventions of s 500 on 30 October 2013 is $253,500; the aggregate of the penalties for all the contraventions occurring on 30 October 2013 is $338,500; and the aggregate of all of the penalties imposed on the CFMEU is $456,000. These are undoubtedly substantial figures. It is appropriate to stand back and consider whether there should be some moderation of some or all by reason of the totality principle.

233    As noted earlier in these reasons, there are two aspects to the totality principle. The first involves consideration of whether the aggregate of the penalties is proportionate to the overall culpability of the contravenor, whereas the second requires consideration of whether the imposition of the penalties in the aggregate may be crushing for the contravenor.

234    In my opinion, it is not appropriate to reduce any of the penalties on account of the totality principle. The CFMEU contraventions of 30 and 31 October 2013 occurred as part of a deliberate and concerted campaign at the Lend Lease building sites. The high aggregate of penalties reflects the fact that the CFMEU chose on those days to deploy several of its officials in the unlawful conduct in the furtherance of its purpose. As already noted, many of those officials came from branches outside South Australia. It seems probable that the CFMEU brought officials from branches outside South Australia to Adelaide for the purpose of the contraventions. Even if that not be the case, it is evident that the CFMEU chose in a premeditated way to have several officials engage in the unlawful conduct at each site, and for that purpose, bolstered the numbers of its South Australian based organisers with those from interstate. The culpability of the CFMEU has to be assessed in that light. In that circumstance, I do not consider that the proposed penalties are disproportionate to the overall culpability of the CFMEU.

235    There is no evidence at all on which the Court could conclude that penalties of this order are likely to be crushing on the CFMEU. It is unfortunate that the funds of CFMEU members are to be expended in the payment of the substantial penalties but that does not have the effect that the penalties are crushing.

Payment of the penalties

236    In his written outline of submissions, the Director submitted that, in addition to ordering that the penalties be paid to the Commonwealth, the Court should order that the penalties imposed on the individual respondents be paid by them personally and that there be no reimbursement of those penalties, whether directly or indirectly, by the CFMEU. The outline referred to the decision of Flick J in DFWBII v Bragdon (No 2) [2015] FCA 988. However, at the hearing, the Director did not press for orders to that effect. It is, accordingly, unnecessary to consider the questions of statutory construction and discretion which would otherwise arise.

Conclusion

237    For the reasons given above, I make 42 declarations substantially in the form sought by the Director. I also impose the following penalties:

238    The penalties are to be paid to the Commonwealth.

Associate:

Dated:    22 April 2016

SCHEDULE OF PARTIES