FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Decmil Engineering Pty Ltd (No 2) [2017] FCA 1237

ORDERS

1.    Pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth), the Court declares that:

(a)    On 21 January 2016, the First Respondent committed one contravention of s 501 of the Fair Work Act 2009 (Cth) (“the FW Act”) by refusing entry onto premises, namely 5 Barclay Street, Hastings (“the Premises”), by a permit holder, namely Mr Fergal Doyle, who was entitled to enter the Premises in accordance with Part 3-4 of the FW Act.

(b)    On 21 January 2016, the Second Respondent committed one contravention of s 501 of the FW Act by refusing entry onto the Premises by a permit holder, namely Mr Doyle, who was entitled to enter the Premises in accordance with Part 3-4 of the FW Act.

(c)    On 2 February 2016, the First Respondent committed one contravention of s 501 of the FW Act by refusing entry onto the Premises by a permit holder, namely Mr Doyle, who was entitled to enter the Premises in accordance with Part 3-4 of the FW Act.

(d)    On 2 February 2016, the Second Respondent committed one contravention of s 501 of the FW Act by refusing entry onto the Premises by a permit holder, namely Mr Doyle, who was entitled to enter the Premises in accordance with Part 3-4 of the FW Act.

2.    The Court orders that:

(a)    Pursuant to s 546(1) of the FW Act, the First Respondent pay a penalty of $6,000 for each contravention s 501 of the FW Act referred to in paragraph 1(a) and 1(c) above.

(b)    Pursuant to s 546(1) of the FW Act, the Second Respondent pay a penalty of $6,000 for each contravention of s 501 of the FW Act referred to in paragraph 1(b) and 1(d) above.

(c)    Pursuant to s 546(3) of the Act, the penalty referred to in paragraph 2(a) and (b) above be paid to the Applicant within 28 days of the making of these orders.

3.    The Applicant’s application against the First and Second Respondents be otherwise dismissed.

4.    The Applicant’s application against the Fourth Respondent be dismissed.

5.    All costs orders in the proceedings to date be set aside and there be no further order as to costs.

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

REASONS FOR JUDGMENT

TRACEY J:

1    In January and February 2016 two new fuel storage tanks were being constructed on a site at Hastings. An official of the applicant, the Construction, Forestry, Mining and Energy Union (“the CFMEU”), who held entry permits which accorded him a conditional right of entry to the site, attempted to enter on two occasions. Both attempts were unsuccessful because the project manager refused to allow the official to enter the site.

2    The CFMEU commenced the present proceeding alleging that certain nominated respondents had contravened ss 501 and 502 of the Fair Work Act 2009 (Cth) (“the FW Act”) and seeking the imposition of pecuniary penalties for those contraventions. The principal corporate respondent was wrongly identified and this necessitated a subsequent amendment to the application and the pleadings.

THE PARTIES

3    The CFMEU’s amended statement of claim named four respondents.

4    The first respondent, Decmil Australia Pty Ltd (“Decmil”), was part of a corporate group and was a subsidiary company of Decmil Group Ltd.

5    The second respondent, Eastcoast Development Engineering Pty Ltd (“Eastcoast Development”), was the head contractor for the project and was an occupier of the premises at which the tanks were being erected. It was also a subsidiary of Decmil Group Ltd.

6    The third respondent, Mr Lloyd Bam, was employed by Decmil as project manager on the site. He admitted that he acted at relevant times as an agent of Eastcoast Development.

7    The fourth respondent, Mr Mark Reeves, was also employed by Decmil as site supervisor and he reported to Mr Bam. He admitted that he acted at relevant times as an agent of Eastcoast Development.

PROCEDURAL HISTORY

8    The proceeding was commenced on 5 February 2016 with the filing of an originating application and statement of claim. The proceeding was brought against another subsidiary of Decmil Group Ltd, which was not involved at the Hastings site, and against Mr Bam and Mr Reeves. An interlocutory application was brought by the applicant to correct the name of the relevant company: see Construction, Forestry, Mining and Energy Union v Decmil Engineering Pty Ltd [2016] FCA 615.

9    An amended application and statement of claim dated 19 May 2016 was filed on 20 May 2016. The amended application was brought against Decmil, Eastcoast Development, Mr Bam and Mr Reeves. It was alleged that each had contravened ss 501 and 502 of the FW Act and sought the imposition of pecuniary penalties against each respondent.

10    A second amended statement of claim was filed on 12 August 2016.

11    A mediation took place on 19 October 2016 but was unsuccessful.

12    On 4 November 2016 the proceeding, as between the applicant and Decmil, Eastcoast Development and Mr Reeves, was listed for a contested hearing on 20 March 2017 on an estimate of five days.

13    On 25 November 2016, Decmil, Eastcoast Development and Mr Reeves filed an amended defence to the second amended statement of claim.

14    On 2 February 2017, Mr Bam filed a further amended defence to the second amended statement of claim. A statement of agreed facts was filed on the same day. The proceeding as between the applicant and Mr Bam was listed for a penalty hearing on 14 March 2017.

15    On 17 January 2017 Decmil and Eastcoast Development contacted the CFMEU with a view to attempting a settlement. That approach led to an agreement, in March 2017, pursuant to which a statement of agreed facts was prepared and the two companies admitted that each had contravened s 501 of the FW Act on 21 January 2016 and 2 February 2016.

16    The proceeding against Mr Bam was dismissed by consent on 10 March 2017.

17    The CFMEU has agreed to an order that the proceeding against Mr Reeves “be wholly dismissed”.

THE BACKGROUND FACTS

18    The tanks were being constructed using what was described as a “top down” method. Prefabricated parts of each tank were delivered to the site and were raised into position by a hydraulic jacking system. As new parts were added to the tank welding was required. This welding was undertaken from outside and within the tank. For the most part workers who were undertaking the welding had access to the internal part of a tank through a three metre gap in the side of the tank. Once the gap was closed, however, workers could only access the inside of the tank by crawling under a ring of vertical plates (called “strakes”) which sat on a plate set 400 to 500 millimetres above the ground.

19    Mr Fergal Doyle was employed by the CFMEU and was an official of that organisation within the meaning of s 12 of the FW Act. He was also an “authorised representative” of the CFMEU within the meaning of s 5 of the Occupational Health and Safety Act 2004 (Vic) (“the OHS Act”). Mr Doyle held entry permits under s 512 of the FW Act and under s 83 of the OHS Act. These permits entitled him to enter premises such as the Hastings site subject to the satisfaction of certain preconditions. One of those conditions was that he held a reasonable suspicion that a contravention of the OHS Act had occurred or was occurring at the premises: see s 87(1) of the OHS Act.

20    On 21 January 2016 Mr Doyle formed such a suspicion; it was that there had been a failure to provide a safe system of work in relation to the erection of one of the tanks, in part because of concerns about the safe workload of the jacking system.

21    Mr Doyle attended at the site on that day. He gave Mr Reeves a notice of suspected contravention of the OHS Act and produced his entry permits. Mr Reeves referred the matter to Mr Bam. Three inspectors from WorkSafe Victoria (“WorkSafe”) attended the site and one of them advised Mr Bam that he (the inspector) considered that Mr Doyle had a lawful right of entry to the premises pursuant to s 87 of the OHS Act. Despite this Mr Bam directed Mr Reeves to advise Mr Doyle that he would not be admitted to the site. Mr Reeves conveyed Mr Bam’s decision to Mr Doyle.

22    On 2 February 2016 Mr Doyle again attended at the site. He had formed a reasonable suspicion that a contravention of the OHS Act had occurred and was occurring at the premises. The suspicion related to concerns about the safe workload of the jacking system and to a further concern relating to the manner in which workers could enter the tank once it had been closed. As he had done on 21 January 2016, Mr Doyle approached Mr Reeves and provided him with a notice of suspected contravention and a copy of his entry permits. Again Mr Reeves referred the matter to Mr Bam. Again WorkSafe inspectors were called to the site and one of them told Mr Bam that she considered that Mr Doyle had a lawful right of entry to the premises. Despite this Mr Bam determined that Mr Doyle would be refused entry to the site.

23    Both Decmil and Eastcoast Development admit that, by Mr Bam refusing Mr Doyle entry to the site on both days, they each contravened s 501 of the FW Act. They admit that Mr Bam’s conduct is, pursuant to s 793 of the FW Act, taken to have been engaged in also by each body corporate.

24    Under the heading “Other matters” the statement of agreed facts contained the following paragraphs:

28.     On each of 21 January 2016 and 2 February 2016, before refusing entry to Mr Doyle, [Mr Bam] sought and received advice from a solicitor from the Australian Industry Group and acted on that advice in refusing entry to Mr Doyle.

29.    At the relevant times, the tank remained open and was accessed by workers walking in through a 3 metre gap in the tank.

30.    At the relevant times, the jacking system was not connected to the tank and was not in use or ready to be used.

31.    At the relevant times, [Mr Bam] and through him [Decmil and Eastcoast Development] acted under an honest belief that Mr Doyle could not have suspected a contravention had or was occurring because the tank was open and the jacking system was not in use.

32.    In saying this, [Decmil and Eastcoast Development] do not resile from their acknowledgment that they contravened s 501 of the FW Act as admitted herein.

33.    [Decmil and Eastcoast Development] have not previously been found to have contravened the FW Act.

THE LEGISLATION

25    Section 501 of the FW Act enjoins persons from refusing or unduly delaying entry onto premises by another person who holds a permit under which he or she is entitled to enter the premises in accordance with Part 3-4 of the Act.

26    Section 501 forms part of a statutory scheme which was recently examined by White J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 (“the Flinders University case”) at [40]-[45] as follows:

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).

27    Division 3 of Part 3-4 of the FW Act deals with entry to premises by persons who hold permits under State or Territory occupational health and safety legislation. The OHS Act is a prescribed law for these purposes: see s 494(3) of the FW Act; Fair Work Regulations 2009 (Cth) reg 3.25 item 2. A permit holder may exercise rights under State or Territory legislation subject to certain conditions such as production of a valid entry permit during working hours: see ss 497 and 498 of the FW Act.

28    Entry permits for the purposes of the OHS Act are issued by the Magistrates’ Court: see s 83. Section 87(1) of that Act relevantly provides that:

87 Entry powers of authorised representatives

(1)    This section applies if an authorised representative of a registered employee organisation [a permit holder] reasonably suspects that a contravention of this Act or the regulations has occurred or is occurring at a place that is a workplace and any of the following paragraphs applies—

(a)    the suspected contravention relates to or affects work that is being carried out by one or more members of the registered employee organisation or relates to or affects any of those members …

29    An “authorised representative” of a registered employee organisation is a person who holds an entry permit issued under Part 8 of the OHS Act: see s 5 of the OHS Act. As mentioned, Mr Doyle was an authorised representative of the CFMEU, an employee organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth), who held such an entry permit.

30    If the preconditions prescribed by s 87(1) are satisfied the authorised representative is entitled to enter the work site for the purpose of enquiring into the suspected contravention: see s 87(2).

31    It was common ground that members of the CFMEU were engaged on the Hastings site at relevant times for the purposes of s 87(1)(a).

PENALTIES

32    Section 501 of the FW Act is a civil remedy provision: see ss 539(1), 539(2) item 25 column 1 of the FW Act. The maximum penalty available for a contravention of s 501 is 300 penalty units for a corporate entity: see ss 546(2)(b), 539(2) item 25 column 4 of the FW Act. A penalty unit was, at the time of the contraventions, valued at $180: see Crimes Act 1914 (Cth) s 4AA(1); FW Act, s 12. As a result, the maximum penalty for each breach of s 501 is $54,000.

33    Although the value of a penalty unit has since increased, the relevant rate has been held to be that which applied at the time of the contravention: see Murrihy v Betezy.com.au Pty Ltd (No 2) (2013) 221 FCR 118 at 127; [2013] FCA 1146 at [28] (Jessup J); Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 at [394]–[395] (Katzmann J).

34    The parties agreed that pecuniary penalties not exceeding $15,000 for each contravention by each of the two corporate respondents should be imposed. No range and no minimum amount was proposed.

35    The CFMEU sought an order, pursuant to s 546(3)(b) of the FW Act, that any penalties imposed by the Court be paid to the CFMEU: cf Sayed v Construction, Forestry, Mining and Energy Union (2016) 239 FCR 336 at 350; [2016] FCAFC 4 at [78] (Tracey, Barker and Katzmann JJ).

FIXING OF PENALTY – PRINCIPLES

36    Section 546(1) of the FW Act confers a broad discretion on the Court to impose pecuniary penalties for contravention of civil remedy provisions such as s 501. The Court may impose such penalty as it “considers is appropriate”. This discretion must, of course, be exercised judicially and not arbitrarily.

37    The basal principle which underpins civil penalty regimes was explained by the High Court plurality in Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 at 506; [2015] HCA 46 at [55] (French CJ, Kiefel, Bell, Nettle and Gordon JJ):

No less importantly, whereas 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 at 511 [68] (Gageler J) and 513 [79] (Keane J). This principle has recently been applied by the Full Court of this Court: see, eg, Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner (2016) 247 FCR 339 at 341, 345; [2016] FCAFC 184 at [6] (Allsop CJ), [26] (North J agreeing); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53 at [90] (Dowsett and Rares JJ); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113 at [98] (Dowsett, Greenwood and Wigney JJ).

38    Reference should also be made to the observation of Keane J in Commonwealth v Director, Fair Work Building Industry Inspectorate (at 524 [110]) in which his Honour endorsed the dictum of a Full Court of this Court in Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249 at 265; [2012] FCAFC 20 at [62] (Keane CJ, Finn and Gilmour JJ) that civil penalties “must be fixed with a view to ensuring that the penalty is not such as to be regarded by [the] offender or others as an acceptable cost of doing business.” See also Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at 659; [2013] HCA 54 at [66] (French CJ, Crennan, Bell and Keane JJ); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113 at [98] (Dowsett, Greenwood and Wigney JJ).

39    There will, in any given case, be a range of considerations which bear on the fixing of an appropriate penalty. Some will be aggravating and tend to towards a higher penalty; others will be mitigatory. A balance is required.

40    The range of potentially relevant considerations is large. Many of these factors were identified by Branson and Lander JJ in Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357 at 375; [2008] FCAFC 170 at [57]. Not all will arise in each case. Nor do they constitute a rigid checklist which must be applied on each occasion: Plancor at 375-376 [58].

41    What is required is that the Court examine all of the factors that are relevant to the exercise of its discretion in a given case and make the necessary evaluation.

42    Where the parties have proposed a particular penalty or a range within which the penalty is to be fixed that proposal will be highly influential but not determinative. As the plurality said in Commonwealth v Director, Fair Work Building Industry Inspectorate (at 491 [58]):

Subject to the court being sufficiently persuaded of the accuracy of the parties’ agreement as to facts and consequences, and that the penalty which the parties proposed is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and … highly desirable in practice for the court to accept the parties’ proposal and therefore impose the proposed penalty.

See also at 511 [68] (Gageler J) and at 513 [79] (Keane J).

CONSIDERATION

43    As White J pointed out in the Flinders University case, the provisions of Part 3-4 of the FW Act seek to balance the competing interests of various parties on construction and other work sites. Under the scheme, rights of entry are made conditional in order that any such right is exercised in accordance with the provisions of the FW Act in a manner that minimises inconvenience to the occupier of a site and the disruption of productive work: cf Construction, Forestry, Mining and Energy Union v Safety Glass Pty Ltd [2010] FCA 989 at [18] (Tracey J). Once, however, the conditions are satisfied, as they were in the present case, a permit holder such as Mr Doyle is entitled to unimpeded access to the site to ascertain whether the health and safety of members of his union are or have been compromised. As counsel for the CFMEU rightly submitted, the protection of workers’ safety on building sites is a highly important function and breaches of provisions such as s 501 have the potential fundamentally to undermine workers’ safety: cf Ponzio v B & P Caelli Construction Pty Ltd (2007) 158 FCR 543 at 545; [2007] FCAFC 65 at [1] (Marshall J).

44    The CFMEU submitted that the contraventions were all the more egregious because inspectors, appointed under the OHS Act, had attended the site on both days and advised Mr Bam that they considered that they had each “formed the reasonable belief that [Mr Doyle had] a lawful right of entry into this workplace under section 87 of the OHS Act …”. Despite being so advised Mr Bam had refused entry to Mr Doyle.

45    On each occasion an inspector prepared what was described as an “entry report”. The reports were prepared off-site and after Mr Doyle had been refused entry. The relevant parts of the two reports were in almost identical terms. The report made in relation to the events on 21 January 2016 read:

I discussed the issues in dispute with Lloyd Bam and the above said management and elected health and safety representatives.

I have verified from my discussions, enquiries and observations that Fergul [sic] Doyle is an ARREO [Authorised Representative of a Registered Employee Organisation] as a representative of CFMEU being a registered employee organisation and I have sighted a copy of:

•    a valid entry permit F11786236 issued under the Occupational Health and Safety Act 2004; and

•    a valid federal entry permit RE2015/773 27 August 2015 under the Commonwealth Fair Work Act 2009. I am satisfied that the ARREO satisfies or can satisfy the requirements under which the federal entry permit is issued.

I observed that the ARREO has completed an approved Notice of Suspected Contravention form and confirmed that the ARREO reasonably suspects that a contravention of the Occupational Health and Safety Act 2004 OR the Occupational Health and Safety Regulations has occurred or is occurring at this workplace and that the suspected contravention relates to or affects work that is being carried out by:

•    Persons eligible to be members of the CFMEU, as a registered employee organisation but whose employment is not subject to a certified agreement by which the registered employee organisation is bound.

For these reasons I have formed the reasonable belief that the ARREO has a lawful right of entry into this workplace under section 87 of the OHS Act 2004.

I informed Lloyd Bam and Fergul [sic] Doyle of my belief, and advised that a refusal to allow the ARREO to enter this workplace would be contravention of section 93(a) of the OHS Act.

46    The notices of suspected contravention prepared by Mr Doyle on 21 January 2016 and 2 February 2016 were in evidence. In the first notice he identified his health and safety concerns at the site as being:

Concern regarding the steel erection plan including but not limited to the jacking systems for the tank construction.

The second notice identified his concerns as:

Concerns relating to the steel erection plan including but not limited to the safe workloads of the jacking systems and associated welding concerns relating to the proper access and egress into the tank during construction.

The parties were agreed that the reference to “access and egress into the tank” reflected a concern that, once the tank was closed, employees would have to enter it by crawling underneath the steel work.

47    There were agreed facts that, on both days, the tank remained open and that workers were able to move inside through a gap in its side and that, on neither day, was the jacking system connected to the tank. The system was not in use or ready to be used. The inspectors, who unlike Mr Doyle had access to the site, must be presumed to have been aware of these facts. They examined the notices produced by Mr Doyle. It is somewhat puzzling that they could conclude that Mr Doyle reasonably suspected that a contravention of the OHS Act had occurred or was occurring for the purposes of s 87 of that Act. Nowhere in either report does the inspector identify a safety concern which falls within the temporal conditions prescribed in s 87.

48    In each case, before he refused entry to Mr Doyle, Mr Bam consulted a solicitor from the Australian Industry Group. The questions asked and the advice given were not in evidence. It was, however, an agreed fact that Mr Bam acted on whatever advice he received from the solicitor when he refused entry to Mr Doyle. That he did so supports another of the agreed facts, namely, that Mr Bam acted under an honest belief that Mr Doyle could not have entertained a relevant suspicion for the purposes of s 87(1) of the OHS Act because the tank was open and the jacking system was not in use at the relevant times.

49    In these circumstances I do not consider that Mr Bam and, through him, the two corporate respondents deliberately set out to contravene s 501 of the FW Act. On each occasion he acted under a mistake of fact and on legal advice.

50    I do not, therefore, regard Mr Bam’s decisions to refuse entry to Mr Doyle, despite the inspectors’ advice, to be a significant aggravating factor.

51    Mr Doyle deposed that, in his experience as an organiser, he had rarely been confronted with the level of hostility that was displayed to him when he attempted to enter the site on the two occasions under consideration. This might be thought to be an aggravating factor. The difficulty, however, is that Mr Doyle did not descend to any detail about the conduct on the part of Mr Bam and Mr Reeves which he says exhibited hostility. His affidavit does no more than record Mr Bam’s intimations that access to the site would be refused. There is no evidence about the terms of the verbal exchanges which occurred or the manner in which those involved conducted themselves.

52    Decmil and Eastcoast Development relied on a number of mitigatory factors which were not disputed by the CFMEU. They were that:

    Neither company had previously contravened the FW Act or other industrial legislation.

    The boards of the two companies have formally expressed regret for the two incidents and undertaken to prevent a recurrence of any such contraventions.

    Since 2 February 2016 neither company has refused any request by representatives of the CFMEU for entry to the site. Mr Doyle sought and was granted access on 5 February 2016 and 7 March 2016 in relation to the same safety concerns regarding access and egress to and from the tanks.

    The two companies have revised their right of entry procedures in order to provide more extensive guidance to their employees as to how to deal with requests for entry to their sites.

53    The two corporate respondents also called in aid what they said was their co-operation with the CFMEU “by admitting the contraventions and reaching agreement on facts and a penalty range.” I do not accord this factor any great weight. The proceeding, in its amended form, effectively commenced on 20 May 2016. A mediation took place on 19 October 2016 but proved unsuccessful. Shortly afterwards the trial was listed to commence in March this year. Three weeks later the two corporate respondents filed an amended defence in which they denied liability. It was not until 17 January 2017 that they initiated the discussions which led ultimately to their acknowledgment of liability for contraventions of s 501 of the Act and the filing of the agreed statement of facts in March 2017. The delay in reaching agreement after discussions had been initiated occurred partly because of difficulty experienced by the CFMEU’s solicitors in obtaining instructions in the latter part of January. Instructions were eventually obtained in early February 2017. By the time the discussions commenced, however, the CFMEU had already incurred the time and expense of preparation for a contested hearing.

54    The authorities to which I have referred emphasise the need for general and specific deterrence to be at the forefront of matters taken into account when the Court is determining appropriate penalties. The corporate respondents have not previously offended and have taken practical steps to avoid future contraventions. There is no suggestion that they have been or are prepared to incur pecuniary penalties for contraventions of the Act as a “cost of doing business”. Specific deterrence, therefore, weighs less heavily that the need for general deterrence.

55    It is to be borne in mind that the two contraventions by each of the corporate respondents arose from the same conduct of Mr Bam on each day. Decmil and Eastcoast Development each acknowledge a degree of responsibility for Mr Bam’s actions. As a result I consider that I should determine an appropriate penalty for one of the bodies corporate on each day and then apportion that sum between them. This will ensure that the penalties imposed are proportionate to each company’s overall level of culpability.

56    I consider that a penalty of $12,000 is warranted in respect of the conduct attributed to the two companies on each of 21 January and 2 February 2016. This will result in individual penalties of $6,000 on each day.

57    The penalties should be paid to the CFMEU as proposed by the parties.

58    The proposed declaratory relief should also be granted.

Associate:

Dated:    24 October 2017