FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Ingham (No 2) (The Enoggera Barracks Case) [2018] FCA 263

ORDERS

THE COURT DECLARES THAT:

1.    On 8 March 2013, the fourth and eighth respondents each:

(a)    contravened s 417 of the Fair Work Act 2009 (Cth) (the FWA) by organizing employees of subcontractors (employees) to take industrial action by not performing work at a construction project in Brisbane known as the QUT Project (the QUT Project) on 8 and 9 March 2013;

(b)    contravened s 343 of the FWA by organising the industrial action described in (a) with intent to coerce John Holland Qld Pty Ltd (JHQ) to enter into an enterprise agreement with the twenty-second respondent (the CFMEU) on terms acceptable to the CFMEU.

2.    On 9 August 2013, the fifth, sixth, seventeenth and eighteenth respondents each:

(a)    contravened s 417 of the FWA by organising employees to take industrial action by not performing work at the QUT Project on 9 and 10 August 2013;

(b)    contravened s 343 of the FWA by organising the industrial action described in (a) with intent to coerce JHQ to enter into an enterprise agreement with the CFMEU on terms acceptable to the CFMEU.

3.    On 9 August 2013, the third, fourth, seventh, ninth, tenth and twelfth respondents each:

(a)    contravened s 417 of the FWA by organising employees to take industrial action by not performing work at a construction project in Brisbane known as the Enoggera Barracks Project (the Enoggera Barracks Project) on 9 and 10 August 2013;

(b)    contravened s 343 of the FWA by organising the industrial action described in (a) with intent to coerce JHQ to enter into an enterprise agreement with the CFMEU on terms acceptable to the CFMEU.

4.    On 28 October 2013, the fifth, seventh and eighth respondents each:

(a)    contravened s 417 of the FWA by organising employees to take industrial action by not performing work at the QUT Project on 28 and 29 October 2013;

(b)    contravened s 343 of the FWA by organising the industrial action described in (a) with intent to coerce JHQ to enter into an enterprise agreement with the CFMEU on terms acceptable to the CFMEU.

5.    On 28 October 2013, the first, second, third, fourth, twelfth and thirteenth respondents each:

(a)    contravened s 417 of the FWA by organising employees to take industrial action by not performing work at the Enoggera Barracks Project on 28 and 29 October 2013;

(b)    contravened s 343 of the FWA by organising the industrial action described in (a) with intent to coerce JHQ to enter into an enterprise agreement with the CFMEU on terms acceptable to the CFMEU.

6.    On 30 October 2013, the fifth, seventh and eighth respondents each:

(a)    contravened s 417 of the FWA by organising employees to take industrial action by not performing work at the QUT Project from 30 October to 2 November, 7 to 9, 11 to 16, 18 to 23 and 25 to 30 November and 2 to 7, 9 to 14 and 16 to 20 December 2013;

(b)    contravened s 343 of the FWA by organising the industrial action described in (a) with intent to coerce JHQ to enter into an enterprise agreement with the CFMEU on terms acceptable to the CFMEU;

(c)    contravened s 421 of the FWA by organising the industrial action described in (a) in breach of an order made pursuant to s 418 of the FWA by the Fair Work Commission on 29 October 2013.

7.    On 30 October 2013, the first, second, third and fourth respondents each:

(a)    contravened s 417 of the FWA by organising employees to take industrial action by not performing work at the Enoggera Barracks Project from 30 to 31 October and 1 to 2 November 2013;

(b)    contravened s 343 of the FWA by organising the industrial action described in (a) with intent to coerce JHQ to enter into an enterprise agreement with the CFMEU on terms acceptable to the CFMEU;

(c)    contravened s 421 of the FWA by organising the industrial action described in (a) in breach of the order made by the Fair Work Commission on 29 October 2013.

8.    On 7 November 2013, the first, second, third and fourth respondents each:

(a)    contravened s 417 of the FWA by organising employees to take industrial action by not performing work at the Enoggera Barracks Project on 8-9, 11-16, 18-23 and 25-30 November and 2-7, 9-13 and 16-20 December 2013;

(b)    contravened s 343 of the FWA by organising the industrial action described in (a) with intent to coerce JHQ to enter into an enterprise agreement with the CFMEU on terms acceptable to the CFMEU;

(c)    contravened s 421 of the FWA by organising the industrial action described in (a) in breach of an order made by the Fair Work Commission on 30 October 2013 varying its order of 29 October 2013.

9.    On 11 November 2013, the first, second, third, sixth, ninth, twelfth, fourteenth, fifteenth and nineteenth respondents each:

(a)    contravened s 417 of the FWA by organising employees to take industrial action by not performing work at the Enoggera Barracks Project on 11 November 2013;

(b)    contravened s 343 of the FWA by organising the industrial action described in (a) with intent to coerce JHQ to enter into an enterprise agreement with the CFMEU on terms acceptable to the CFMEU;

(c)    contravened s 421 of the FWA by organising the industrial action described in (a) in breach of the order made by the Fair Work Commission on 30 October 2013 varying the order of 29 October 2013.

10.    On 12 November 2013, the second, third, sixth, ninth, twelfth, fourteenth, fifteenth, sixteenth and nineteenth respondents each contravened s 343 of the FWA by engaging in conduct, namely impeding the entry of persons into the Enoggera Barracks site, within intent to coerce JHQ to enter into an enterprise agreement with the CFMEU on terms acceptable to the CFMEU.

11.    On 18 November 2013, the eighteenth, nineteenth and twentieth respondents each contravened s 343 of the FWA by engaging in conduct, namely impeding the entry of persons into the QUT Project site, with intent to coerce JHQ to enter into an enterprise agreement with the CFMEU on terms acceptable to the CFMEU.

12.    On 21 November 2013, the eighteenth and twentieth respondents each contravened s 343 of the FWA by engaging in conduct, namely impeding the entry of persons into the QUT Project site, with intent to coerce JHQ to enter into an enterprise agreement with the CFMEU on terms acceptable to the CFMEU.

13.    On 25 November 2013, the twentieth respondent contravened s 343 of the FWA by engaging in conduct, namely impeding the entry of persons into the QUT project site, with intent to coerce JHQ to enter into an enterprise agreement with the CFMEU on terms acceptable to the CFMEU.

14.    On each of the dates described in Orders 1-12 above, by the conduct of the respondents described in those orders and the operation of s 793 of the FWA, the twenty-second respondent contravened ss 417, 343 and 421 of the FWA.

THE COURT ORDERS THAT:

15.    The first respondent pay four pecuniary penalties of $7,500, a total of $30,000, for his contraventions of ss 343, 417 and 421 of the FWA.

16.    The second respondent pay five pecuniary penalties of $7,500, a total of $37,500, for his contraventions of ss 343, 417 and 421 of the FWA.

17.    The third respondent pay six pecuniary penalties of $3,500, a total of $21,000, for his contraventions of ss 343, 417 and 421 of the FWA.

18.    The fourth respondent pay five pecuniary penalties of $3,500, a total of $17,500, for his contraventions of ss 343, 417 and 421 of the FWA.

19.    The fifth respondent pay three pecuniary penalties of $7,500, a total of $22,500, for his contraventions of ss 343, 417 and 421 of the FWA.

20.    The sixth respondent pay three pecuniary penalties of $3,500, a total of $10,500, for his contraventions of ss 343, 417 and 421 of the FWA.

21.    The seventh respondent pay three pecuniary penalties of $7,500, a total of $22,500, for his contraventions of ss 343, 417 and 421 of the FWA.

22.    The eighth respondent pay three pecuniary penalties of $3,500, a total of $10,500, for his contraventions of ss 343, 417 and 421 of the FWA.

23.    The ninth respondent pay three pecuniary penalties of $7,500, a total of $22,500, for his contraventions of ss 343, 417 and 421 of the FWA.

24.    The tenth respondent pay one pecuniary penalty of $7,500, a total of $7,500, for his contravention of ss 343 and 417 of the FWA.

25.    The twelfth respondent pay four pecuniary penalties of $3,500, a total of $14,000, for his contraventions of ss 343, 417 and 421 of the FWA.

26.    The thirteenth respondent pay one pecuniary penalty of $3,500, a total of $3,500, for his contraventions of ss 343 and 417 of the FWA.

27.    The fourteenth respondent pay two pecuniary penalties of $3,500, a total of $7,000, for his contraventions of ss 343, 417 and 421 of the FWA.

28.    The fifteenth respondent pay two pecuniary penalties of $3,500, a total of $7,000, for his contraventions of ss 343, 417 and 421 of the FWA.

29.    The sixteenth respondent pay one pecuniary penalty of $7,500 for his contravention of s 343 of the FWA.

30.    The seventeenth respondent pay one pecuniary penalty of $3,500 for his contravention of ss 343 and 417 of the FWA.

31.    The eighteenth respondent pay one pecuniary penalty of $3,500 and two pecuniary penalties of $1,750, a total of $7,000, for his contraventions of s 343 and 417 of the FWA.

32.    The nineteenth respondent pay three pecuniary penalties of $3,500, a total of $10,500, for his contraventions of ss 343, 417 and 421 of the FWA.

33.    The twentieth respondent pay three pecuniary penalties of $1,200, a total of $3,600, for his contraventions of s 343 of the FWA.

34.    The twenty-second respondent pay three pecuniary penalties of $15,300 and 11 pecuniary penalties of $46,000, a total of $551,900, for its contraventions of ss 343, 417 and 421 of the FWA.

35.    The respondents pay the penalties to the Commonwealth of Australia within 60 days.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The applicant seeks declarations and pecuniary penalty orders against each respondent in respect of their respective contraventions of ss 343, 417 and 421 of the Fair Work Act 2009 (Cth) (the FWA).

2    The respondents consist of the CFMEU and 19 of its officers, organisers, delegates or agents. The respondents admit the contraventions.

3    The issues between the parties concern the amounts of the penalties to be imposed.

The facts

4    The contraventions arise out of an industrial dispute between the CFMEU and John Holland Pty Ltd (John Holland) and John Holland Queensland Pty Ltd (JHQ) in 2012 and 2013. The dispute concerned JHQ’s refusal or failure to enter into an Enterprise Agreement (EA) with the CFMEU on the terms sought by the CFMEU.

5    In mid-2012, the CFMEU sought to negotiate an EA with JHQ in relation to its building and construction operations in Queensland. Colin Matthews, Operations Manager of John Holland met with Jade Ingham, Assistant State Secretary of the CFMEU, in December 2012 to discuss such an agreement. At this meeting Mr Ingham told Mr Matthews that there were a number of non-negotiable matters which JHQ needed to agree to in an EA. Mr Ingham also told Mr Matthews that if JHQ did not agree to some form of industrial instrument for the Northern Territory, then the CFMEU would not be agreeing to the terms of any EA.

6    In around late 2012, the CFMEU published an article referring to John Holland as “the last major tier one builder to knock over” in terms of it signing up to an EA with the CFMEU.

7    Negotiations between the CFMEU and John Holland and JHQ continued until March 2013. On 6 March 2013, Mr Ingham told Mr Mathews that he was upset JHQ had not yet signed an EA in respect of its Queensland and Northern Territory operations and there would be industrial action until it signed the agreement.

8    Thereafter, the CFMEU and a number of its officials and organisers engaged in a campaign against JHQ to force it to enter into an EA on terms acceptable to the CFMEU. The industrial action taken as part of this campaign involved the CFMEU organizing stoppages of work at two JHQ projects, the ELF2B Project at Enoggera (the Enoggera Barracks) constructed by John Holland and the QUT Project at Kelvin Grove (QUT) constructed by JHQ, over a period from March 2013 until late November 2013.

9    The Enoggera Barracks was a $777 million project for the redevelopment and construction of a number of defence facilities within the Enoggera Army Barracks. QUT was a $60 million project that involved the demolition and refurbishment of existing buildings and the construction of new buildings at QUT’s Kelvin Grove campus.

10    John Holland and JHQ engaged a total of 31 subcontractors to carry out construction work at the projects. A number of these subcontractors already had EAs which had not passed their nominal expiry date, and the CFMEU was a party to and was covered by such agreements.

The first stoppage

11    The first stoppage of work commenced at QUT on 8 March 2013. Dennis Mitchell and Kevin Griffin, both organisers with the CFMEU, held a meeting with workers, following which a large number of workers left the site. Mr Mitchell and Mr Griffin spoke with the site manager and told him that the workers would not be back for the rest of the day or the next day. A large number of workers did not attend work on 9 March 2013 despite being scheduled to work at QUT.

12    The respondents admit that Mr Mitchell, Mr Griffin and the CFMEU engaged in conduct in contravention of ss 417 and 343 of the FWA.

13    On 8 March 2013, Mr Matthews telephoned Mr Ingham about these events at QUT and Mr Ingham told him, “This is just the start of it. The sooner you sign the agreement, the sooner it will stop”.

14    Further negotiations were conducted between the CFMEU and JHQ. In particular, Mr Matthews had a conversation with Kane Pearson, Branch Assistant Secretary of the BLF and an officer of the CFMEU, who told him that the industrial action would continue until he signed the agreement the CFMEU had proposed, and that it was in John Holland’s best interest to sign the agreement as soon as possible.

15    On 19 March 2013 Mr Matthews had a telephone conversation with Michael Ravbar, State Secretary of the CFMEU, who told Mr Matthews that, the following day was “D-Day” and if John Holland did not reach an agreement in relation to the Northern Territory, then the leniency that it had been shown up to then would cease, and that John Holland could expect issues like those experienced by other Tier One contractors on their construction sites. This was a reference to a number of large building contractors in Queensland signing agreements with the CFMEU following stoppages of work at various sites.

The second and third stoppages

16    On 9 August 2013 at QUT, Michael Myles and Andrew Sutherland, organisers with the CFMEU, and Ryan Whakaruru and Lindsay Stohr, delegates for members of the CFMEU, held a meeting with a large number of workers. The workers then left the site and did not return to work on that day or the following day. Mr Sutherland told the site manager, Brian Weigel, that the unions had an issue with John Holland and the workers had voted to go home because John Holland had stalled in negotiations for an EA with the union.

17    On 9 August 2013 at Enoggera Barracks, Edward Bland, Tony Kong, Mark O’Brien, Chad Bragdon, Griffin and Duncan McAllister, organisers with the CFMEU, held a meeting with workers during which workers were informed that John Holland had done a backflip on a handshake agreement with the Union and Mr Bland told workers that John Holland just wanted to “fuck and kill the workers”, following which the workers left site and did not return to work on the following day.

18    The respondents admit that Mr Myles, Mr Whakaruru, Mr Stohr, Mr Sutherland, Mr Bland, Mr Kong, Mr O’Brien, Mr Bragdon, Mr Griffin, Mr McAllister and the CFMEU engaged in conduct that contravened ss 417 and 343 of the FWA.

19    On 13 August 2013, the Fair Work Commission issued orders under s 418 of the FWA to stop industrial action in relation to both projects, which ceased to have effect on 14 October 2013.

The fourth and fifth stoppages

20    During the period from 10 August 2013 to 28 October 2013, no EA was finalised between the CFMEU and JHQ or John Holland.

21    On 28 October 2013 at QUT, Mr O’Brien, Mr Myles and Mr Mitchell held a meeting where they told workers that John Holland had not signed an EA with the CFMEU and they proposed that workers stop work for 48 hours, following which the workers left site, and did not return to work on the following day.

22    On 28 October 2013 at Enoggera Barracks, Mr Ingham, Mr Pearson, Mr Kong and Mr Griffin (organisers), and Mr McAllister and Benjamin Sheeran (delegates) held a meeting with workers where they also proposed that workers stop work for 48 hours, following which the workers left site, and did not return to work on the following day.

23    The respondents admit that Mr O’Brien, Mr Myles, Mr Mitchell, Mr Kong, Mr Griffin, Mr Pearson, Mr Ingham, Mr McAllister, Mr Sheeran and the CFMEU engaged in conduct in contravention of ss 417 and 343 of the FWA.

24    On 29 October 2013, the Fair Work Commission made an order pursuant to s 418 of the FWA that the CFMEU not organize industrial action by employees of various named subcontractors at both projects. These orders were amended on 30 October 2013 to make it clear that each of the employees of the various named subcontractors must cease engaging in industrial action.

The sixth and seventh stoppages

25    Despite the orders made by the Fair Work Commission, there were further stoppages of work.

26    On 30 October 2013 at QUT, Mr Myles and Mr Mitchell held a meeting with workers, following which the workers left site and did not return the next day or thereafter prior to the Christmas period site shutdown that commenced on 20 December 2013. Mr Myles, Mr Mitchell and Mr O’Brien were present at the top car park entrance to QUT from about 5:30 am onwards on 31 October 2013.

27    On 30 October 2013 at Enoggera Barracks, Mr Kong, Mr Ingham, Mr Pearson and Mr Griffin held a meeting with over 100 workers, following which the workers left site and did not return the next day or thereafter up to 2 November 2013.

28    Mr Kong and Mr Griffin were present at the carpark near Lloyd Street at the Enoggera Barracks and on the corner of Lloyd Street and Ardentallen Road from about 5:30 am on 31 October 2013 and observed vehicles and persons driving into the site. Mr Kong, Mr Pearson and Mr Griffin were present at the Lloyd Street entrance to the Enoggera Barracks from around 5:30 am on 1 November 2013 facing towards vehicles and persons that entered the site. Mr Kong and two other men were at the Lloyd Street entrance to the Enoggera Barracks from around 7:00 am on 2 November 2013 facing towards vehicles and persons that entered the site.

29    The respondents admit that Mr O’Brien, Mr Myles, Mr Mitchell, Mr Kong, Mr Griffin, Mr Pearson, Mr Ingham and the CFMEU engaged in conduct that was in contravention of ss 417, 421 and 343 of the FWA.

The eighth stoppage

30    From 7 November 2013 until 20 December 2013, further stoppages of work occurred at the Enoggera Barracks. Mr Ingham, Mr Pearson, Mr Kong and Mr Griffin were present at the Lloyd Street entrance to the site from around 5:00 am on 7 November 2013 and spoke with workers, faced vehicles and persons that drove down, and walked down Lloyd Street towards the site.

31    On the same day, Mr Ingham, Mr Pearson, Mr Kong and Mr Griffin held a meeting with over 100 workers off-site at a nearby shopping centre carpark, where the fact that John Holland had not signed an EA with the CFMEU was discussed. Further, during this meeting when some workers raised the prospect of returning to work, Mr Ingham stated words to the effect of “Look, I’m running this meeting, keep quiet”. Following the meeting, the workers left site and did not return to work in the period up until 20 December 2013.

32    Also on 7 November 2013, Mr Ingham made a telephone call to Steven Scott, Director of Mewcastle, a subcontractor at the Enoggera Barracks and said that if Mewcastle and its senior management interfered and did not support the CFMEU in their action against John Holland, Mewcastle’s relationship with the CFMEU would deteriorate dramatically.

33    The respondents admit that Mr Kong, Mr Griffin, Mr Pearson, Mr Ingham and the CFMEU engaged in conduct in contravention of ss 417, 421 and 343 of the FWA.

Coercive conduct at Enoggera Barracks in November 2013

34    On 11 November 2013 at the Enoggera Barracks, Mr Ingham, Mr Pearson, Mr Kong, Mr Sutherland, Mr Bragdon, Mr McAllister, Aaron Kelly (a delegate), Wayne Scobie (a branch council member) and Mace Griffin, stood at the Lloyd Street entrance to the Enoggera Barracks and on the surrounding streets including in the middle of Lloyd Street and on the median strip, staring at persons who attempted to enter the site.

35    The respondents admit that the conduct engaged in by Mr Ingham, Mr Kong, Mr Mace Griffin, Mr Pearson, Mr Sutherland, Mr Bragdon, Mr McAllister, Mr Scobie, Mr Kelly and the CFMEU was in contravention of ss 417, 421 and 343 of the FWA.

36    On 12 November 2013 at Enoggera Barracks, Mr Pearson, Mr Kong, Mr Sutherland, Mr Bragdon, Mr McAllister, Mr Scobie, Mr Mace Griffin and John Cummins (CFMEU branch council member) stood on the streets surrounding the site entrance and stared at persons attempting to enter the site and spoke to workers. Mr Cummins and Mr Mace Griffin held up signs that read “CONSTRUCTION WORKERS YOUR FUTURE’S AT STAKE”. A group of men including Mr Kelly, Mr McAllister, Mr Scobie and Mr Mace Griffin stood in the middle of Lloyd Street slowing and stopping vehicles as they drove towards the Lloyd Street entrance by walking in front of vehicles. Once vehicles were stopped, Mr Kelly and Mr Mace Griffin and the other men spoke with the individuals in the vehicles. Some of these vehicles did not then enter the site. A white Holden Commodore and a black Jeep were driving slowly down Lloyd Street causing traffic to back up behind them, and while these vehicles were stopped, Mr Kelly and Mr Mace Griffin and others spoke to the individuals in the vehicles.

37    The respondents admit that Mr Pearson, Mr Kong, Mr Sutherland, Mr Bragdon, Mr McAllister, Mr Scobie, Mr Mace Griffin, Mr Cummins, Mr Kelly and the CFMEU engaged in conduct that contravened s 343 of the FWA.

Coercive conduct at QUT in November 2013

38    On 18 November 2013 at QUT, Mr Stohr, Mr Kelly and Antonio Floro (agent of the CFMEU) were present at the entrance to the site and stopped vehicles as they sought to enter. Some of the vehicles left the site after the occupants were spoken to by the group of men.

39    Mr Kelly, in the company of Mr Floro and Mr Stohr, held up a sign outside the front of the project which read “THIS IS WHY YOUR ON $19 AN HOUR U GUTLESS GRUBS, SCABS AN DOGS. WEAK AS PISS”. At 7:12 am a truck pulled up at the entrance but was not able to enter due to a group of persons including Mr Floro and Mr Kelly standing in front of the gate. Mr Floro was holding a sign which read “JOHN HOLLAND PAY THE RIGHT FREIGHT DON’T LET ANOTHER SUBBY GO UNDER”. After a couple of minutes, the group moved off the road and the truck entered the project.

40    The respondents admit that the conduct engaged in by Mr Stohr, Mr Kelly, Mr Floro and the CFMEU was in contravention of s 343 of the FWA.

41    On 21 November 2013 at QUT, Mr Stohr and others stood directly in front of the entrance to the site and prevented two vehicles from entering. Mr Floro and a group of men stood in front of another vehicle attempting to enter the site. The group began yelling the words “Fuck off” and the vehicle did not enter. Mr Floro and a group of men stood in front of another vehicle attempting to enter the site, Mr Floro spoke to the driver and the vehicle left without entering the site as the group of men clapped and cheered.

42    The respondent admits that the conduct engaged in by Mr Stohr, Mr Floro and the CFMEU was in contravention of s 343 of the FWA.

43    On 25 November 2013 at QUT, Mr Floro was present outside the site entrance with others. Mr Floro and a group of men stood in front of two vehicles, preventing them from entering the site.

44    The respondents admit that the conduct engaged in by Mr Floro and the CFMEU was in contravention of s 343 of the FWA.

45    On 14 December 2013, JHQ and the CFMEU made an in-principle agreement to enter into an EA in respect of JHQ’s building and construction operations in Queensland and the Northern Territory.

46    Workers did not return to work at either project until early 2014, following the Christmas shutdown period.

THE LEGISLATION

Section 417

47    Section 417 of the FWA provides:

(1)    A person referred to in subsection (2) must not organise or engage in industrial action from the day on which:

(a)    an Enterprise Agreement is approved by the FWC until its nominal expiry date has passed; or

(b)     a workplace determination comes into operation until its nominal expiry date has passed;

whether or not the industrial action relates to a matter dealt with in the agreement or determination.

(2)    The persons are:

(a)     an employer, employee, or employee organisation, who is covered by the agreement or determination; or

(b)     an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity.

48    Industrial action is defined by s 19 of the FWA to include:

…

(b)    a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

…

(c)    a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work.

49    It has been held that when employees refuse to attend work at the direction of their union, that conduct can be “industrial action”: see Skilled Engineering Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2001] FCA 1397 at [2].

50    The allegations against the first to nineteenth respondents are that they organised industrial action in contravention of s 417 of the FWA. The term “organising” in the context of industrial action is not defined in the FWA. In Australian Building and Construction Commissioner v Huddy [2017] FCA 739, White J at [147] considered that “organising” in the context of s 417 of the FWA involved “acts of positive and intentional conduct bringing about or maintaining, or contributing in a material way to the bringing about or maintenance, of industrial action”.

Section 421 of the FWA

51    Section 421 provides, relevantly:

(1)    A person to whom an order under section 418, 419 or 420 applies must not contravene a term of the order.

…

Section 343 of the FWA

52    Section 343 provides:

Section 343    Coercion

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

(a)     exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

(b)     exercise, or propose to exercise, a workplace right in a particular way.

53    Section 341 provides, relevantly:

Section 341 – Meaning of workplace right

(1)     A person has a workplace right if the person:

(a)     is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)     is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument;…

54    In order to establish an intent to coerce, it is necessary to prove that it was intended that pressure be exerted in a practical sense that negated choice, and the exertion of pressure involved conduct that was unlawful, illegitimate or unconscionable: see Victoria v Construction, Forestry, Mining and Energy Union and Another (2013) 218 FCR 172 at [71].

55    It is also necessary to prove that each individual respondent had an intention to coerce in the requisite way. The determination of whether a respondent had that intention requires an examination of the respondent’s purpose in taking the action: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 at [19].

Section 793 of the FWA

56    Section 793 of the FWA provides, relevantly:

Section 793     Liability of bodies corporate

Conduct of a body corporate

(1)     Any conduct engaged in on behalf of a body corporate

(a)     by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

(b)     by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official:

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

State of mind of a body corporate

(2)     If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:

(a)    that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and

(b)    that the person had that state of mind.

Meaning of state of mind

(3)    The state of mind of a person includes:

(a)    the knowledge, intention, opinion, belief or purpose of the person; and

(b)     the person’s reasons for the intention, opinion, belief or purpose.

CONTRAVENTIONS OF THE FWA

57    I find that the following individual respondents engaged in the following contraventions of the FWA:

58    Under s 793 of the FWA, the CFMEU is taken to have engaged in the conduct engaged in by the individual respondents. I find that the CFMEU engaged in the following contraventions of the FWA:

PENALTIES

59    Section 546 of the FWA gives the Court a discretion to 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.

60    At the relevant times, the maximum penalty for contravention of ss 343, 417 and 421 of the FWA was 60 penalty units, or $10,200 for individuals and $51,000 for corporations.

61    The objects of the FWA set out in s 3 include achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action.

62    The purpose of Pt 3-1 of the FWA (in which ss 343, 417 and 421 appear) was described in Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 at [183] as follows:

The evident purpose of Pt 3-1 is to protect the workplace rights conferred by that Part including by protecting the exercise of those rights and providing effective relief for persons discriminated against, victimised or otherwise adversely affected.

63    In Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 at [55]-[59], the High Court emphasized that the primary purpose of civil penalties is to secure protection through deterrence, and that deterrence is the primary purpose of imposing a penalty. In particular, the High Court distinguished sentences for criminal offences, which are concerned with retribution and rehabilitation, from the imposition of pecuniary penalties, which are primarily, if not wholly, protective in promoting the public interest in compliance.

64    Similarly, in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458 at [90]-[91], Dowsett and Rares JJ emphasized that the primary purpose of imposing a civil penalty is to deter the contravener and others from repeating the kinds of conduct complained of, and that there was a need to deter “serial recidivists like the CFMEU…” from contravening ss 343 and 348 of the FWA again.

65    There are well-established principles which guide the exercise of the Court’s discretion to determine the appropriate penalty. In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 353, Tracey J summarised the relevant principles as follows:

66    The task of the Court is to ensure that any penalty which is imposed is proportionate to the gravity of the contravening conduct.

67    The penalty is to be determined by a process of “instinctive synthesis. This process involves the Court having regard to all relevant factors before fixing a penalty which brings them all into account.

68    Where multiple contraventions arise from a series of related events which constitute a course of conduct principles of proportionality and consistency come into play in determining the appropriateness of the penalty.

69    The ultimate penalty “must be proportionate to the offence and in accordance with the prevailing standards of punishment”.

70    Consistency requires that “[l]ike cases should be treated in like manner”. The consistency principle does not require a detailed factual comparison between past cases and that presently under consideration with a view to fixing a higher or lower penalty depending on the outcome of the comparative analysis.

71    It is also necessary to ensure that a respondent is not punished twice for the same conduct…

72    This principle is to be applied separately from and anterior to the final check constituted by the application of the totality principle. It does not necessarily require the application of a single penalty for all of the contravening conduct.

73    The totality principle falls for consideration at the end of the process. It requires the Court to stand back and decide whether the aggregate of multiple penalties fixed by it is appropriate for the total contravening conduct involved. The principle is designed to “ensure that the aggregate of penalties imputed is not such as to be oppressive or crushing”. A consequence of the application of the principle is that the aggregate penalty may be reduced if it is considered to be too great.

[Citations omitted]

66    Although the authorities warn against applying a rigid check-list of matters, the factors recognised as being potentially relevant to the determination of the appropriate penalty include the following:

(a)    the nature and importance of the project where the conduct was undertaken;

(b)    the nature and extent of the conduct which led to the breaches;

(c)    the circumstances in which that conduct took place;

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

(e)    whether there had been similar previous conduct by the respondents;

(f)    whether the breaches were properly distinct or arose out of the one course of conduct;

(g)    the size of the business enterprise involved;

(h)    whether or not the breaches were deliberate;

(i)    whether senior management was involved in the breaches;

(j)    whether the party committing the breach had exhibited contrition;

(k)    whether the party committing the breach had taken corrective action;

(l)    whether the party committing the breach had cooperated with the enforcement authorities;

(m)    the need for specific and general deterrence.

(Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union (2008) 171 FCR 357 at [57]-[58]; Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080 at [14], [28]-[30]; Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 407 at [90]).

The nature, extent, deliberateness and circumstances of the conduct

67    The CFMEU and its officials and agents undertook a campaign to force John Holland and JHQ to enter into an EA on terms acceptable to the CFMEU. Their conduct involved repeatedly organising stoppages of work at the Enoggera Barracks and QUT projects, coercive and intimidatory behaviour and disregard of orders made by the Fair Work Commission.

68    The conduct was protracted, occurring over a lengthy period from March to November 2013. The respondents point out that their conduct was not continuous over that period. That is true, but there were numerous stoppages at each site over that time and the progress of projects was repeatedly stalled.

69    The contraventions affected two major projects and impacted upon a large number of subcontractors and workers. The behaviour of the respondents who contravened s 343 of the FWA was confronting, threatening and intimidatory. Their conduct involved a sustained and flagrant disregard for the workplace rights and freedom of association guaranteed under the FWA.

70    As Mortimer J observed in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436 at [136], coercion and intimidation involves abuse, and misuse, of power and “is part of an ‘end justifies the means’ way of thinking which is frequently inconsistent and incompatible with the rule of law”. The Court should make it clear that coercion and intimidation contrary to law will not be tolerated and will be the subject of significant sanctions.

71    The respondents’ conduct was deliberate, flagrant and systematic. Their breaches of the FWA must be regarded as very serious and deserving of very significant penalties.

72    The respondents submit that it is a mitigating factor that their conduct was directed to a legitimate industrial objective, namely making an EA. Under ss 417, 421 and 343 of the FWA, particular conduct is made unlawful, regardless of whether or not the contravener is pursuing what it perceives as a legitimate industrial objective. The provisions are directed to the manner of pursuing an objective, not the content of the objective being pursued. If the respondents’ conduct was capricious or done out of spite, that would have been an aggravating factor, and I accept that no such aggravating factor was present. However, the absence of an aggravating factor does not amount to a mitigating factor. I do not accept that the fact that the respondents were pursuing an EA makes the offending less serious, particularly when the conduct was designed to coerce JHQ into agreeing to the CFMEU’s terms. I do not accept that it is a mitigating factor that the respondents were pursuing a legitimate industrial objective through unlawful means.

Contrition and cooperation

73    The respondents have shown no contrition or remorse for their actions. There is no evidence of any attempts by the CFMEU to take corrective steps to ensure that its official and agents comply with the law.

74    However, the respondents have admitted their contraventions. This has resulted in substantial savings of public funds. That should be recognised in the penalties that are imposed.

Similar past conduct

75    In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113 at [158] at [158], the Full Court noted that the CFMEU’s past contraventions revealed a “lamentable, if not disgraceful, record of deliberately flouting industrial laws”. The Court further noted at paragraph [159]:

The most significant point to emerge from the schedules of past cases is that the CFMEU is a recidivist when it comes to contravening industrial laws. No penalties that have been imposed in the past have appeared to reduce its willingness to breach the law. It continues to thumb its nose at the industrial laws, including the BCII. The Court should nevertheless not shy away from imposing stern sentences with a view to attempting to deter the CFMEU from engaging in, or encouraging others to engage in, further unlawful industrial action. Considerations of deterrence, both specific and general, undoubtedly loom large in fixing the appropriate penalties.

76    In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the Webb Dock case) [2017] FCA 62, Jessup J stated at [65]:

It is now well-established that deterrence, both specific and general, is the predominant purpose of civil penalties in a statutory regime such as that of the FWA. The CFMEU is a registered organisation of substantial size, resources and influence. Any suggestion that it did not fully understand the operation of the provisions of the Act under which the Director proceeded could not be taken seriously. Indeed, its past record of encounters with these, or similar, provisions speaks loudly of its familiarity with them. That record, to which I refer further below, justifies only one inference: that the CFMEU has done nothing, over the years, to cause its own staff to comply with the law. Indeed, the inference that the CFMEU will always prefer its own interests, whatever they may be from time to time, to compliance with the law is a compelling one. This case presented yet another instance of that pattern of behaviour.

77    As a result of the CFMEU’s extensive history of similar contraventions, specific deterrence is important in determining the appropriate penalty to be imposed.

78    Further, there is no evidence that the individual respondents have resigned their positions with the CFMEU, or that they have ceased to be active in the industrial relations sphere. The need for specific deterrence of these individuals is therefore high.

79    The principles concerning the relevance of similar prior conduct when assessing civil penalties include the following:

(a)    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 that is disproportionate to the gravity of the instant contravention: Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548 at [13].

(b)    Similar previous 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”: Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 at [44].

(c)    A respondent is not to be punished again for the prior conduct. Prior conduct may, however, diminish leniency by reason of good character, or lead to a greater penalty for the purpose of personal deterrence: The Queen v McInerney (1986) 42 SASR 111 at 113, cited in Williams v Construction, Forestry, Mining and Energy Union (No 2) at [27] – [28].

(d)    Conduct of a different character does not assist, although similar conduct that has been found to contravene other legislative provisions does assist: Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 at [44].

(e)    The quality of the conduct and its relevance to the industrial behaviour which the instant legislation seeks to address is determinative, not whether the prior conduct arose under different legislation or different provisions of the instant legislation: Williams v Construction, Forestry, Mining and Energy Union (No.2) at [16]-[17].

(f)    Prior relevant conduct includes prior relevant conduct of officials from other branches of the union: Williams v Construction, Forestry, Mining and Energy Union (No 2) at [19]-[25].

80    The applicant placed before the Court schedules setting out details of breaches of industrial legislation by the CFMEU and certain individual respondents, namely Mr Ingham, Mr Myles, Mr Cummins, Mr Bland, Mr Pearson, Mr O’Brien and Mr Bragdon. The schedules show 135 occasions on which Courts imposed civil penalties on the CFMEU between 1999 and 2017. Approximately 90 of these occasions concern conduct occurring prior to the contraventions in this case. Many of the cases involved organising or threatening to organise unlawful industrial action or coercive conduct.

81    One of the CFMEU’s prior contraventions involved organizing industrial action between 5 February and 29 April 2009 with intent to coerce John Holland to employ former employees of a subcontractor and taking action with intent to coerce John Holland and the subcontractor to make enterprise agreements with the CFMEU: see Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2010] FCA 754. In that instance, aggregate penalties of $858,000 were imposed upon the CFMEU. I consider that it is an aggravating feature that the current contraventions were committed for similar unlawful conduct against the same company. The penalty clearly did not deter the CFMEU from engaging in similar conduct again in 2013.

Number of Penalties

82    It may be seen from the tables set out above that the CFMEU engaged in 39 contraventions of the FWA. However, the number of contraventions do not necessarily reflect the number of penalties that will be imposed.

83    The effect of s 556 of the FWA is that if contraventions of multiple provisions arise from the same wrongful conduct, the conduct attracts only one penalty. Therefore, where the same conduct resulted in contraventions of ss 417, 421 and 343, there can only be one penalty. The parties agree that when s 556 is applied, the maximum number of penalties that can be imposed on the CFMEU is 13.

84    The respondents submit that the maximum penalty that should be imposed in respect of the contraventions at the QUT site on 18, 21 and 25 November 2013 is the maximum penalty for one contravention on the basis that there was a single course of conduct. The respondents do not suggest that s 557(1) of the FWA applies here. The inapplicability of s 557 does not exclude the common law principle of taking into account whether the conduct complained of constituted a single course of conduct: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53 at [88] (Dowsett and Rares JJ).

85    The “course of conduct” or “one transaction” principle was described in Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1; [2010] FCAFC 39 by Middleton and Gordon JJ as follows:

[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.

…

[42]    A court is not compelled to utilise the principle because, as Owen JA said in Royer at [28], “[d]iscretionary judgments require the weighing of elements, not the formulation of adjustable rules or benchmarks”. The exercise of the sentencing discretion does not fall to be exercised in a vacuum. It is a matter of judgment to be exercised according to the facts of each case and having regard to conflicting sentencing objectives... For the same reasons, and. contrary to the appellants’ submissions, even if offences are properly characterised as arising from the one transaction or a single course of conduct, a judge is not obliged to apply concurrent terms if the resulting effective term fails to reflect the degree of criminality involved.

86    The applicant submits that the conduct at QUT on 18, 21 and 25 November should not be regarded as a single course of conduct. The applicant points out that the conduct occurred on separate dates. Although the applicant also submits that the conduct was different on each date, it seems to me that the conduct was effectively the same. The conduct consisted of stopping vehicles which attempted to enter the site and persuading the drivers to leave through intimidatory behaviour. Apart from the fact that the conduct was effectively the same, it occurred at the same site and was engaged in with the same motivation. While the conduct occurred on three different dates, it all occurred within the space of one week. On each occasion, the conduct involved contravention of s 343 of the FWA.

87    In my view, the legal and factual elements of the conduct at the QUT site on 18, 21 and 25 November 2013 are so intertwined that the offences can be said to have arisen out of a single course of conduct. This conclusion does not mean that only a single penalty should be imposed for the contraventions, but that the Court should begin from the premise that the maximum penalty is the penalty for one contravention: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113 at [133].

88    The same conclusion must apply to the three contraventions by Mr Floro and the two contraventions by Mr Stohr at QUT in November 2013.

Determination of penalties

89    In relation to the CFMEU, the applicant submits that 13 separate penalties approaching the maximum should be imposed in respect of its contraventions of ss 343, 417 and 421.

90    I accept that submission, subject to two matters. First, I have found that the contraventions at QUT on 18, 21 and 25 November 2013 should be treated as arising from a single course of conduct, and I consider that the maximum penalty for one offence should be the maximum aggregate penalty imposed for those contraventions. Second, the CFMEU’s cooperation and consequent saving of public resources should be taken into account by imposing penalties that are less than the maximum penalties available.

91    Accordingly, I will impose penalties of $15,300 upon the CFMEU for each of the contraventions at QUT on 18, 21 and 25 November 2013. I will impose a further 11 penalties of $46,000 each on the CFMEU in respect of the remainder of its contraventions. The total penalty will be $551,900.

92    In relation to the individual respondents, Mr Ingham, Mr Myles, Mr Cummins, Mr Pearson, Mr O’Brien, Mr Bland and Mr Bragdon have been the subject of prior and subsequent penalties for contraventions of the FWA. The respondents accepted that subsequent contraventions are to be taken into account. The applicant’s submissions and schedules are ambiguous as to whether Mr Kong has other contraventions and, as the applicant carries the onus of proof, I will proceed on the basis that he does not.

93    In respect of the respondents who have prior contraventions, the penalties imposed ought to be greater than those with no prior history, and towards the higher end of the spectrum. The penalties for the remainder of the individual respondents should be of a lesser magnitude.

94    I impose the following penalties on the individual respondents:

95    I have had regard to the totality principle. I do not consider that the aggregate penalties are oppressive or crushing, and see no reason to reduce them.

96    I will order that the respondents pay the penalties to the Commonwealth within 60 days.

97    I will also make appropriate declaratory orders.

Associate:    

Dated:    9 March 2018

SCHEDULE OF PARTIES