FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (The Kane Constructions Case) (No 2) [2017] FCA 368

ORDERS

THE COURT ORDERS THAT:

1.    The second respondent, an officer of the first respondent within the meaning of the Fair Work Act 2009 (Cth), pay a penalty of $7,600 in respect of his contravention of s 417 of the said Act by organising industrial action to be taken by employees of Kane Constructions Pty Ltd, and by employees of sub-contractors to that company, being employees who were covered by enterprise agreements approved under the said Act the nominal expiry dates of which had not passed and by which the first respondent was also covered, on 2 April 2014 at the site of the “Aquanation” aquatic centre project at the corner of Greenwood Avenue and Reilly Street, Ringwood, Victoria.

2.    The first respondent pay a penalty of $42,000 in respect of its contravention of s 417 of the Fair Work Act 2009 (Cth) arising from the conduct of the second respondent referred to in Order 1 above.

3.    The third respondent, an officer of the first respondent within the meaning of the Fair Work Act 2009 (Cth), pay a penalty of $5,600 in respect of his contravention of s 417 of the said Act by organising industrial action to be taken by employees of Kane Constructions Pty Ltd, and by employees of sub-contractors to that company, being employees who were covered by enterprise agreements approved under the said Act the nominal expiry dates of which had not passed and by which the first respondent was also covered, on 2 April 2014 at the Geelong Hospital project at Ryrie Street, Geelong, Victoria.

4.    The first respondent pay a penalty of $39,200 in respect of its contravention of s 417 of the Fair Work Act 2009 (Cth) arising from the conduct of the third respondent referred to in Order 3 above.

5.    The fourth respondent, an officer of the first respondent within the meaning of the Fair Work Act 2009 (Cth), pay a penalty of $6,400 in respect of his contravention of s 417 of the said Act by organising industrial action to be taken by employees of Kane Constructions Pty Ltd, and by employees of sub-contractors to that company, being employees who were covered by enterprise agreements approved under the said Act the nominal expiry dates of which had not passed and by which the first respondent was also covered, on 2 April 2014 at the site of the Mercy Hospital project at 18-22 Fernhill Road, Sandringham, Victoria.

6.    The first respondent pay a penalty of $42,000 in respect of its contravention of s 417 of the Fair Work Act 2009 (Cth) arising from the conduct of the fourth respondent referred to in Order 5 above.

7.    The tenth respondent, an officer of the first respondent within the meaning of the Fair Work Act 2009 (Cth), pay a penalty of $7,200 in respect of his contravention of s 417 of the said Act by organising industrial action to be taken by employees of Kane Constructions Pty Ltd, being employees who were covered by an enterprise agreement approved under the said Act the nominal expiry date of which had not passed and by which the first respondent was also covered, on 22 May 2014 at the site of the Mercy Hospital project at 18-22 Fernhill Road, Sandringham, Victoria.

8.    The eleventh respondent, an officer of the first respondent within the meaning of the Fair Work Act 2009 (Cth), pay a penalty of $7,600 in respect of his contravention of s 417 of the said Act by organising industrial action to be taken by employees of Kane Constructions Pty Ltd, being employees who were covered by an enterprise agreement approved under the said Act the nominal expiry date of which had not passed and by which the first respondent was also covered, on 22 May 2014 at the site of the Mercy Hospital project at 18-22 Fernhill Road, Sandringham, Victoria.

9.    The first respondent pay a penalty of $42,000 in respect of its contravention of s 417 of the Fair Work Act 2009 (Cth) arising from the conduct of the tenth and eleventh respondents referred to in Orders 7 and 8 above.

10.    The fifth respondent, an officer of the first respondent within the meaning of the Fair Work Act 2009 (Cth), pay a penalty of $7,600 in respect of his contravention of s 417 of the said Act by organising industrial action to be taken by employees of Kane Constructions Pty Ltd, and by employees of sub-contractors to that company, being employees who were covered by enterprise agreements approved under the said Act the nominal expiry dates of which had not passed and by which the first respondent was also covered, on 2 April 2014 at the site of the Owen Dixon Chambers West project at 525 Lonsdale Street, Melbourne, Victoria.

11.    The first respondent pay a penalty of $42,000 in respect of its contravention of s 417 of the Fair Work Act 2009 (Cth) arising from the conduct of the fifth respondent referred to in Order 10 above.

12.    The fifth respondent, an officer of the first respondent within the meaning of the Fair Work Act 2009 (Cth), pay a penalty of $7,600 in respect of his contravention of s 417 of the said Act by organising industrial action to be taken by employees of Kane Constructions Pty Ltd, being employees who were covered by an enterprise agreement approved under the said Act the nominal expiry date of which had not passed and by which the first respondent was also covered, on 22 May 2014 at the site of the Owen Dixon Chambers West project at 525 Lonsdale Street, Melbourne, Victoria.

13.    The first respondent pay a penalty of $42,000 in respect of its contravention of s 417 of the Fair Work Act 2009 (Cth) arising from the conduct of the fifth respondent referred to in Order 12 above.

14.    The third respondent, an officer of the first respondent within the meaning of the Fair Work Act 2009 (Cth), pay a penalty of $6,400 in respect of his contravention of s 417 of the said Act by organising industrial action to be taken by employees of Kane Constructions Pty Ltd, and by employees of sub-contractors to that company, being employees who were covered by enterprise agreements approved under the said Act the nominal expiry dates of which had not passed and by which the first respondent was also covered, on 2 April 2014 at the St John of God Hospital project at 80 Myers Street, Geelong, Victoria.

15.    The first respondent pay a penalty of $44,800 in respect of its contravention of s 417 of the Fair Work Act 2009 (Cth) arising from the conduct of the third respondent referred to in Order 14 above.

16.    The third respondent, an officer of the first respondent within the meaning of the Fair Work Act 2009 (Cth), pay a penalty of $5,600 in respect of his contravention of s 417 of the said Act by organising industrial action to be taken by employees of Kane Constructions Pty Ltd, being employees who were covered by an enterprise agreement approved under the said Act the nominal expiry date of which had not passed and by which the first respondent was also covered, on 22 May 2014 at the St John of God Hospital project at 80 Myers Street, Geelong, Victoria.

17.    The ninth respondent, an officer of the first respondent within the meaning of the Fair Work Act 2009 (Cth), pay a penalty of $6,400 in respect of his contravention of s 417 of the said Act by organising industrial action to be taken by employees of Kane Constructions Pty Ltd, being employees who were covered by an enterprise agreement approved under the said Act the nominal expiry date of which had not passed and by which the first respondent was also covered, on 22 May 2014 at the St John of God Hospital project at 80 Myers Street, Geelong, Victoria.

18.    The first respondent pay a penalty of $39,200 in respect of its contravention of s 417 of the Fair Work Act 2009 (Cth) arising from the conduct of the third and ninth respondents referred to in Orders 16 and 17 above.

19.    The first respondent pay a penalty of $33,600 in respect of its contravention of s 417 of the Fair Work Act 2009 (Cth) arising from the conduct of Lee McKenzie, its agent within the meaning of the said Act, in organising industrial action to be taken by employees of Kane Constructions Pty Ltd, and by employees of sub-contractors to that company, being employees who were covered by enterprise agreements approved under the said Act the nominal expiry dates of which had not passed and by which the first respondent was also covered, on 2 April 2014 at the BUPA project at 222-228 Serpells Road, Templestowe, Victoria.

20.    The sixth respondent, an officer of the first respondent within the meaning of the Fair Work Act 2009 (Cth), pay a penalty of $8,400 in respect of his contravention of s 417 of the said Act by organising industrial action to be taken by employees of Kane Constructions Pty Ltd, and by employees of sub-contractors to that company, being employees who were covered by enterprise agreements approved under the said Act the nominal expiry dates of which had not passed and by which the first respondent was also covered, on 22 May 2014 at the “Emporia” project at 132 Commercial Road, Prahran, Victoria.

21.    The seventh respondent, an officer of the first respondent within the meaning of the Fair Work Act 2009 (Cth), pay a penalty of $7,200 in respect of his contravention of s 417 of the said Act by organising industrial action to be taken by employees of Kane Constructions Pty Ltd, and by employees of sub-contractors to that company, being employees who were covered by enterprise agreements approved under the said Act the nominal expiry dates of which had not passed and by which the first respondent was also covered, on 22 May 2014 at the “Emporia” project at 132 Commercial Road, Prahran, Victoria.

22.    The first respondent pay a penalty of $47,600 in respect of its contravention of s 417 of the Fair Work Act 2009 (Cth) arising from the conduct of the sixth and seventh respondents referred to in Orders 20 and 21 above.

23.    The eighth respondent, an officer of the first respondent within the meaning of the Fair Work Act 2009 (Cth), pay a penalty of $7,200 in respect of his contravention of s 417 of the said Act by organising industrial action to be taken by an employee of Kane Constructions Pty Ltd, and by employees of a sub-contractor to that company, being employees who were covered by enterprise agreements approved under the said Act the nominal expiry dates of which had not passed and by which the first respondent was also covered, on 22 May 2014 at the Epworth Hospital project at 62 Erin Street, Richmond, Victoria.

24.    The first respondent pay a penalty of $42,000 in respect of its contravention of s 417 of the Fair Work Act 2009 (Cth) arising from the conduct of the eighth respondent referred to in Order 23 above.

25.    The third respondent, an officer of the first respondent within the meaning of the Fair Work Act 2009 (Cth), pay a penalty of $4,800 in respect of his contravention of s 417 of the said Act by organising industrial action to be taken by an employee of Kane Constructions Pty Ltd who was covered by an enterprise agreement approved under the said Act the nominal expiry date of which had not passed and by which the first respondent was also covered, on 22 May 2014 at the Geelong Library project at Little Malop Street, Geelong, Victoria.

26.    The ninth respondent, an officer of the first respondent within the meaning of the Fair Work Act 2009 (Cth), pay a penalty of $5,200 in respect of his contravention of s 417 of the said Act by organising industrial action to be taken by an employee of Kane Constructions Pty Ltd who was covered by an enterprise agreement approved under the said Act the nominal expiry date of which had not passed and by which the first respondent was also covered, on 22 May 2014 at the Geelong Library project at Little Malop Street, Geelong, Victoria.

27.    The first respondent pay a penalty of $33,600 in respect of its contravention of s 417 of the Fair Work Act 2009 (Cth) arising from the conduct of the third and ninth respondents referred to in Orders 25 and 26 above.

28.    The said penalties be paid to the Commonwealth of Australia within 30 days.

29.    The Application otherwise be dismissed.

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

REASONS FOR JUDGMENT

JESSUP J:

1    These reasons, and the orders which accompany them, deal with the penalties proper to be imposed, in consequence of the judgment in The Kane Constructions Case [2017] FCA 168 delivered on 1 March 2017. The reasons assume a familiarity with that judgment, and the reasons for it.

2    It was submitted on behalf of the respondents that, in respect of a respondent who or which contravened s 417(1) of the FW Act more than once on one of the relevant days – 2 April and 22 May 2014 – the operation of s 557 of the Fair Work Act 2009 (Cth) (“the FW Act”) produced the result that there was one contravention on that day, in respect of that respondent, only. If accepted, this submission would affect the penalties to be imposed on Booth and Murphy and on the CFMEU itself.

3    Section 557(1) of the FW Act provides as follows:

(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 417(1) is one of the provisions listed in s 557(2).

4    Commencing with the CFMEU, the problem which the respondents’ submission immediately encounters is that s 557 requires a finding that the contraventions in question arose out of a course of conduct. In the case of the CFMEU, however, the court’s contravention findings were not based upon the conduct in which it engaged. Rather, they were based upon the conduct in which it was taken to have engaged, by the operation of s 793 of the FW Act. In the absence of evidence as to what CFMEU management actually did, all the court knows is that the conduct of the individual respondents was attributed to the CFMEU. That is insufficient to found a finding as to a course of conduct.

5    Booth contravened s 417(1) at the Geelong Hospital site and at the St John of God Hospital site on 2 April 2014; and he contravened that provision at the St John of God Hospital site and at the Geelong Library site on 22 May 2014. In my reasons of 1 March 2017, I made findings as to these contraventions as separate entities. In the hearings which led to those findings, it was made clear to counsel for the respondents that the court expected to be addressed on all questions as to the identification of the contraventions upon which penalties would be based. Counsel for the applicant addressed the court on the operation of s 557 of the FW Act. Indeed, my findings of 1 March 2014 contain numerous instances of course-of-conduct findings in relation to individual respondents. The proposition that Booth’s contraventions at different sites on the same day arose out of the one course of conduct was not dealt with in those reasons because it was not so submitted on behalf of the respondents.

6    Counsel for the respondents submitted that he was entitled to make such a submission now because, it was said, s 557 operated only for the purposes of the imposition of penalties and that it was irrelevant to, and had no part to play in, the anterior point at which the court made its findings of contravention. I do not accept that submission. Section 557 of the FW Act operates for the purposes of Pt 4-1, not only for the purposes of s 546. It governs the findings available in a proceeding commenced under s 539(2), whatever may be the remedial outcomes either sought or granted.

7    The submission that Booth’s conduct at the two sites referred to on each of 2 April and 22 May 2014 gave rise to one contravention only on each day was inconsistent with findings already made, and must be rejected.

8    Murphy contravened s 417(1) at the St John of God Hospital site and at the Geelong Library site on 22 May 2014. For the reasons given above in relation to Booth, I reject the submission that it is now open to the respondents to press for a finding that he was engaged in a single course of conduct out of which those contraventions arose.

9    That brings me to the matter of penalties. At the time of the contraventions, the maximum penalties were $10,200 in the case of an individual and $51,000 in the case of a corporation. An argument advanced on behalf of the applicant that the maxima applicable to the circumstances of the present case were the higher penalties legislated in July 2015 finds no support in the decided cases and should be rejected.

10    Section 417 is, in my view, central to the system of industrial regulation set up by the FW Act. That there should be no industrial action during the term of an enterprise agreement is part of the deal, as it were, to which employers and their employees sign up when they make and approve such an agreement under Pt 2-4 of that Act. Any weakening of the impact of s 417 will necessarily undermine the credibility and strength of the system itself under which employment benefits in excess of those provided in the National Employment Standards are negotiated. The court should, in my view, provide a strong response to conduct which is not only in contravention of s 417 but which involves a cavalier disregard for the protections which the section is supposed to deliver. Regrettably, the conduct of the individual respondents in the present case is of that character.

11    Over the construction sites with which this proceeding has been concerned, in no instance was there any suggestion of an issue or grievance, specific to the site or the workers on it, that justified, or even explained, the organisation of industrial action. Rather, the pattern tended to be that one of the respondents would arrive at a site, presumably with some agenda external to the interests of those working there, and disrupt the performance of normal work. Commonly, this was done without apology or the slightest sense of obligation to the laws which regulate the conduct of industrial relations in Australia. At times, the attitude of the respondents could only be described as high-handed and arrogant. The inference is irresistible that the industrial action which was organised by the respondents had the explicit object of inflicting commercial harm on Kane.

12    In what follows, in the case of each individual respondent, additionally to the fact of the contravention in each case, I have taken into account the seriousness of the impact of the contravention on the flow of productive work on the site (so far as that may be inferred), the behaviour of the respondent as he engaged in the contravening conduct, and the respondent’s record of past contraventions of similar or analogous industrial laws. In the case of the CFMEU, I have based my assessment upon the fact of the contravention, upon the seriousness of the impact of the contravention, upon the behaviour of the individual respondent whose conduct was attributed to the CFMEU and upon the CFMEU’s own record of past contraventions of similar or analogous industrial laws. Often in the reasons which follow below, I draw specific attention to one or more of these factors, but, even when not mentioned, they have been taken into account.

13    It is a feature of most of the contraventions with which these reasons are concerned that they were not co-extensive with the industrial action which was taken on the various sites. From what appears, all or most of the workers on a particular site were prevailed upon to stop work by one or more of the individual respondents, but only in respect of some of the workers did this conduct amount to a contravention of s 417(1) of the FW Act by one or more of the respondents. When considering the intrinsic gravity of such a contravention, it will be necessary to avoid the easy assumption that it produced the result that no further work was done on the site on the day in question: the individual respondent’s conduct may indeed have produced that result, but whether his contravening conduct did so is another question. I do not suggest that that question will always be answered in the negative, but neither will it always be answered in the affirmative.

14    I commence with Powell’s contravention at the Aquanation site on 2 April 2014. The industrial action was constituted by about 55 workers ceasing work to attend a meeting with Powell. His contravention related to 30 of those workers. The interruption to work was, I would infer, of no more than 30 minutes’ duration. Of itself, this was not a particularly serious matter. But it had nothing to do with any issue or grievance which the workers had. It was for Powell’s own purposes, whatever they were, that he organised the industrial action. It may have been a piqued response to Kane’s refusal to allow him entry to the site without the required authorisation. At best, Powell’s disruption of work on the site can be described as unjustified and gratuitous.

15    According to a table handed up by the applicant, Powell has been the subject of findings of contraventions of statutory provisions which I should regard as relevant to the present exercise on six occasions, all prior to April/May 2014. Penalties totalling $115,000 have been imposed on him. He has been an active and willing participant in unlawful conduct carried out under the banner of the CFMEU. The need for the penalty imposed on him in the present case to act as a deterrent to the continuation of this kind of conduct is self-evident.

16    I consider that a penalty of $7,600 is appropriate in respect of Powell’s contravention of s 417(1) of the FW Act at the Aquanation site on 2 April 2014.

17    With respect to the CFMEU’s contravention arising out of Powell’s conduct at the Aquanation site, I take into account what I have said about with respect to that conduct. I also take into account the CFMEU’s own record of lawlessness in the industrial context. I repeat what I said on that subject in another judgment handed down today: The Australian Paper Case [2017] FCA 167 at [31]-[32].

18    I consider that a penalty of $42,000 is appropriate in respect of the CFMEU’s contravention of s 417(1) of the FW Act constituted by the conduct of Powell at the Aquanation site on 2 April 2014.

19    I deal next with Booth’s contravention at the Geelong Hospital site on 2 April 2014. As a result of Booth’s intervention, somewhat more than half the workers who had signed in to work on the site that morning left the site, not to return that day. Booth’s contravention related to 32 of them. That involved, I infer, a serious interruption to the flow of productive work on the site. The evidence suggests that Booth acted as he did in retaliation for the arrest of Powell at the Aquanation site. As a justification for the unlawful interruption of work being carried out at a different site, that was both unacceptable and illegitimate.

20    Booth has not previously been the subject of any finding of a contravention of a presently relevant industrial law.

21    I consider that a penalty of $5,600 is appropriate in respect of Booth’s contravention of s 417(1) of the FW Act at the Geelong Hospital site on 2 April 2014.

22    With respect to the CFMEU’s contravention of s 417(1) of the FW Act constituted by the conduct of Booth at the Geelong Hospital site on 2 April 2014, I refer to what I said in para 17 above. A penalty of $39,200 is appropriate in this instance.

23    I deal next with Long’s contravention at the Mercy Place site on 2 April 2014. It involved organising both the stop-work meeting of workers generally and the departure from site of the employees of subcontractors. Long’s contravention related to 25 of them. There is little to distinguish the quality of this contravention from Booth’s contravention at the Geelong Hospital site. At the time of the contravention, Long had been found to have contravened a presently relevant law once (for which a penalty of $5000 was imposed), and had in fact contravened another such law on a second occasion, notwithstanding that that contravention became the subject of findings only in 2016. In Long’s case, the need for a penalty to act as a specific deterrent is more obvious than in the case of Booth.

24    I consider that a penalty of $6,400 is appropriate in respect of Long’s contravention of s 417(1) of the FW Act at the Mercy Place site on 2 April 2014.

25    With respect to the CFMEU’s contravention of s 417(1) of the FW Act constituted by the conduct of Long at the Mercy Place site on 2 April 2014, I refer to what I said in para 17 above. A penalty of $42,000 is appropriate in this instance.

26    I deal next with the contraventions of Benstead and Myles at the Mercy Place site on 22 May 2014. On this occasion, there were two employees of Kane and seven employees of subcontractors, working on the site. From what the evidence disclosed, one of the Kane employees and all of the subcontractor employees ceased work at these respondents’ instigation. But their conduct amounted to contraventions of s 417(1) only in relation to the employee of Kane who did not return to work. In the circumstances, I could not draw any inference as to the gravity of the contraventions

27    Findings of contraventions of presently relevant industrial laws have been made against Benstead on three occasions, all prior to May 2014. Arising from those findings, penalties totalling $15,000 were imposed. The need for the penalty in this case to act as a deterrent is well-established in the case of Benstead. I consider that a penalty of $7,200 is appropriate in this instance.

28    Findings of contraventions of presently relevant industrial laws have been made against Myles on five occasions. Penalties totalling $76,825 have been imposed. Only one of those findings was made prior to May 2014, but on four further occasions the contravening conduct occurred prior to that month. Myles’ conduct, including his recent conduct, demonstrates a readiness on his part to ignore his legal obligations as the occasion requires. Clearly the penalty imposed in the present case should act as a strong incentive for him to comply with the law more conscientiously than he has done in the past. I consider that a penalty of $7,600 is appropriate in this instance.

29    With respect to the CFMEU’s contravention of s 417(1) of the FW Act constituted by the conduct of Benstead and Myles at the Mercy Place site on 22 May 2014, I refer to what I said in para 17 above. A penalty of $42,000 is appropriate in this instance.

30    I deal next with Christopher’s contravention at the ODC West site on 2 April 2014. As noted in my reasons of 1 March 2017, there is little to differentiate the quality of Christopher’s intervention from that of Long at the Mercy Place site the same day. Here the contravention related to 11 workers, in addition to which there were 17 workers who ceased work at Christopher’s instigation but to whom his contravention did not relate. There is enough here to infer that the contravening conduct, as such, had a meaningful and damaging impact upon the flow of productive work on the site, but assessing the extent of that impact would be beyond the evidence in the case. At the time of the contravention, Christopher had been found to have contravened a presently relevant law on five occasions (on three of which penalties totalling $29,500 had been imposed), in addition to which he was later found to have contravened such a law on three other occasions prior to April 2014. The need for the penalty to operate as a deterrent in the case of Christopher is self-evident. I consider that a penalty of $7,600 is appropriate in this instance.

31    With respect to the CFMEU’s contravention of s 417(1) of the FW Act constituted by the conduct of Christopher at the ODC West site on 2 April 2014, I refer to what I said in para 17 above. A penalty of $42,000 is appropriate in this instance.

32    Although not on all fours in every respect, the only material respect in which the circumstances of Christopher’s contravention at the ODC West site on 22 May 2014 differ from those of his contravention there on 2 April 2014 is that, on the later date, the contravention related to three workers only, of a total of 12 proved to have been working on the site. In this state of the evidence, I am not prepared to draw any inference as the seriousness of the impact of Christopher’s contravention of s 417(1). I take the view that penalties of $7,600 and $42,000 are appropriate to be imposed on him and on the CFMEU, respectively, in relation to the contravention on 22 May 2014.

33    I deal next with Booth’s contravention at the SJOG site on 2 April 2014. Here it appears that he organised unlawful industrial action to be taken by all those who were working on the site at the time. In every respect his conduct amounted to a contravention of s 417(1) of the FW Act. It is readily to be inferred that it had a significant adverse impact upon the performance of productive work.

34    I consider that a penalty of $6,400 is appropriate in respect of Booth’s contravention of s 417(1) of the FW Act at the SJOG site on 2 April 2014.

35    With respect to the CFMEU’s contravention of s 417(1) of the FW Act constituted by the conduct of Booth at the SJOG site on 2 April 2014, I refer to what I said in para 17 above. A penalty of $44,800 is appropriate in this instance.

36    I deal next with Booth’s contravention at the SJOG site on 22 May 2014. The circumstances of this contravention differ from those of Booth’s contravention at the same site on 2 April 2014 in this respect. On 2 April, Booth’s contraventions related to all workers on the site, whereas on 22 May his contraventions related to two employees of Kane only. It is not clear how many other workers were on site at the time, but it seems that there were some. It is, therefore, not possible to get any kind of a picture, even a rough one, of the impact which the unlawful industrial action had on the site.

37    I take the view that a penalty of $5,600 is appropriate in respect of Booth’s contravention of s 417(1) of the FW Act at the SJOG site on 22 May 2014.

38    I deal next with Murphy’s contravention at the SJOG site on 22 May 2014. His circumstances differ from those of Booth in that he (Murphy) had been subject to a finding of a contravention of a presently relevant industrial law in 2011. A penalty of $5,000 was then imposed on him. It seems that that experience did not deter him from contravening again on 22 May 2014.

39    I consider that a penalty of $6,400 is appropriate in respect of Murphy’s contravention of s 417(1) of the FW Act at the SJOG site on 22 May 2014.

40    With respect to the CFMEU’s contravention of s 417(1) of the FW Act constituted by the conduct of Booth and Murphy at the SJOG site on 22 May 2014, I refer to what I said in para 17 above. A penalty of $39,200 is appropriate in this instance.

41    In relation to the BUPA site, the CFMEU’s contravention related to 11 of the total of 40-50 workers on the site on 2 April 2014. That was by no means a majority, of course, but neither should it be inferred that the interruption to productive work caused by the contravention was trivial. I consider that a penalty of $33,600 is appropriate in this instance.

42    I deal next with Beattie’s contravention at the Emporia site on 22 May 2014. This was another egregiously high-handed intervention in an apparently peaceful workplace by a union official with an agenda of his own. Beattie proceeded to organise industrial action without consideration of the prohibitions in s 417 of the FW Act. His contravention related to 19 of the 31 workers who met with him in the lunch room. The contravention was such as to warrant the inference that it caused a serious interruption to the flow of normal productive work on the site. Beattie has been found to have contravened presently relevant industrial laws on six occasions, three of which findings were made before May 2014. Penalties totalling $30,800 have been imposed on him, including on the three most recent occasions. It is apparent that the penalty imposed in the present case must be such as would deter Beattie from engaging in further unlawful conduct.

43    I consider that a penalty of $8,400 is appropriate in respect of Beattie’s contravention of s 417(1) of the FW Act at the Emporia site on 22 May 2014.

44    At the level of the intrinsic culpability of their conduct, I would not make a distinction between Perkovic and Beattie in relation to the Emporia site on 22 May 2014. However, the former’s record is not as bad as the latter’s. Only three weeks before he visited this site, he engaged in conduct which was described in the court’s declaration as “acting in an improper manner while exercising, or seeking to exercise, rights as a permit holder in accordance with s 484 of the FW Act”: Director of the Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432. However, because of the proximity of the two episodes of unlawful conduct, I do not think it would be right to take the earlier one into account as speaking to the need for the penalty in the present case to have a greater deterrent effect than would otherwise be called for.

45    I consider that a penalty of $7,200 is appropriate in respect of Perkovic’s contravention of s 417(1) of the FW Act at the Emporia site on 22 May 2014.

46    With respect to the CFMEU’s contravention of s 417(1) of the FW Act constituted by the conduct of Beattie and Perkovic at the Emporia site on 22 May 2014, I refer to what I said in para 17 above. A penalty of $47,600 is appropriate in this instance.

47    I deal next with Theodorou’s contravention at the Epworth site on 22 May 2014. With respect to the immediate circumstances of the contravention, there is little to differentiate it from a number of like contraventions, such as that of Christopher at the ODC West site the same day. Of the 10 workers who were on site that day, seven were involved in this contravention. Clearly it had a substantial impact on the work being done that day. In February and September 2011, Theodorou had engaged in conduct which was later – in December 2015 and May 2013 respectively – held to have been in contravention of the BCII Act. At the time of his contravening conduct in the present case, he had been penalised the sum of $4,500 in respect of his conduct in September 2011 and the penal proceeding was pending in respect of his conduct in February 2011. These experiences were not sufficiently chastening to deter him from contravening s 417(1) of the FW Act at the Epworth site in May 2014. I consider that the penalty imposed in the present case should be such as will act as a deterrent to further contraventions. I consider that a penalty of $7,200 is appropriate in this instance.

48    With respect to the CFMEU’s contravention of s 417(1) of the FW Act constituted by the conduct of Theodorou at the Epworth site on 22 May 2014, I refer to what I said in para 17 above. A penalty of $42,000 is appropriate in this instance.

49    With respect to the contraventions of Booth and Murphy at the Geelong Library site on 22 May 2014, the only thing which sets the circumstances apart from others involving those respondents dealt with above is that, on the findings I have made, they organised only one employee to take industrial action in contravention of s 417(1). I have no way of knowing how serious an impact that action had on the flow of productive work at the site. I consider that penalties of $4,800 and $5,200 are appropriate in respect of the contraventions of s 417(1) of the FW Act by Booth and Murphy, respectively, at the Geelong Library site on 22 May 2014.

50    With respect to the CFMEU’s contravention of s 417(1) of the FW Act constituted by the conduct of Booth and Murphy at the Geelong Library site on 22 May 2014, I refer to what I said in para 17 above. A penalty of $33,600 is appropriate in this instance.

51    It remains to consider whether the total of the penalties imposed on the CFMEU and on two of the individual respondents is disproportionate to its and their overall culpability on the days in question. To a large degree, this aspect is informed by what I have said above about s 557 of the FW Act. Most obviously, in the case of the CFMEU I do not have the evidence as to what was really going on, and I am not prepared to draw any inference favourable to it. All I know is that it is taken to have engaged in conduct on a number of Kane sites on each of two days in the autumn of 2014.

52    The penalties which I have considered appropriate for imposition on the CFMEU with respect to 2 April and 22 May 2014, in total, amount to $243,600 and $246,400 respectively. In my view, those totals are not disproportionate to the CFMEU’s overall culpability for what occurred on those days.

53    The penalties which I have considered appropriate for imposition on Booth with respect to 2 April and 22 May 2014, in total, amount to $12,000 and $10,400 respectively. In my view, those totals are not disproportionate to his overall culpability for what occurred on those days.

54    The penalties which I have considered appropriate for imposition on Murphy with respect to 22 May 2014, in total, amount to $11,600. In my view, this total is not disproportionate to his overall culpability for what occurred on that day.

55    The orders which accompany these reasons impose the penalties referred to above.

Associate:

Dated:    11 April 2017

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