FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Brooker Highway Case) (No 2) [2018] FCA 1214

File number:

TAD 47 of 2017

Judge:

TRACEY J

Date of judgment:

16 August 2018

Catchwords:

INDUSTRIAL LAW where the Federal Court had found contraventions of s 500 of the Fair Work Act 2009 (Cth) by an official of the Construction, Forestry, Maritime, Mining and Energy Union – where the union was liable on the basis of s 550 of the Fair Work Act 2009 (Cth) – consideration of appropriate penalties – consideration of whether a non-indemnification personal payment order should be made

Legislation:

Crimes Act 1914 (Cth) s 4AA(1)

Fair Work Act 2009 (Cth) ss 12, 487, 500, 539(2), 546(1), 546(2), 546(3)(a)

Work Health and Safety Act 2012 (Tas) s 122

Cases cited:

Australian Building and Construction Commission v Construction, Forestry, Maritime, Mining and Energy Union (The Bendigo Theatre Case) (No 2) [2018] FCA 1211

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Brooker Highway Case) [2018] FCA 1081

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Parliament Square Case) (No 2) [2018] FCA [2018] FCA 1201

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Parliament Square Case) [2018] FCA 1080

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (No 2) [2018] FCAFC 117

Date of hearing:

13 August 2018

Date of last submissions:

14 August 2018

Registry:

Tasmania

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

37

Counsel for the Applicant:

Ms R Walsh

Solicitor for the Applicant:

Herbert Smith Freehills

Counsel for the Respondents:

Mr P Boncardo

Solicitor for the Respondents:

Construction, Forestry, Mining and Energy Union

ORDERS

TAD 47 of 2017

BETWEEN:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Applicant

AND:

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

First Respondent

KEVIN HARKINS

Second Respondent

RICHARD XAVIER HASSETT

Third Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

15 August 2018

PENAL NOTICE

TO:     THE CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION AND RICHARD HASSETT

IF YOU (BEING THE PERSON BOUND BY THIS ORDER):

(A)    REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B)    DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

THE COURT DECLARES THAT:

1.    The Third Respondent contravened s 500 of the Fair Work Act 2009 (Cth) (“the FW Act”) on 12 October 2016 at a road building project on the Brooker Highway near Hobart in the State of Tasmania by acting in an improper manner while exercising rights as a permit holder under s 484 of the FW Act by failing to give notice of his attendance, remaining on site after being directed to leave and by aggressively and repeatedly using foul and abusive language.

2.    The Construction, Forestry, Maritime, Mining and Energy Union was knowingly concerned with Mr Hassett’s contravention of s 500 of the FW Act on 12 October 2016 and is taken by s 550 of the FW Act to have itself contravened s 500.

THE COURT ORDERS THAT:

3.    The First Respondent pay a penalty of $50,000 in respect of its contravention of s 500 as declared in paragraph 2 above.

4.    The Third Respondent pay a penalty of $7,500 in respect of his contravention of s 500 as declared in paragraph 1 above.

5.    The pecuniary penalties referred to in paragraph 3 above be paid to the Commonwealth of Australia within 28 days of these orders being made by the Court.

6.    The pecuniary penalties referred to in paragraph 4 above be paid to the Commonwealth of Australia within 60 days of these orders being made by the Court.

7.    There be no order as to costs.

8.    The proceeding otherwise be dismissed.

THE COURT DIRECTS THAT:

9.    The Applicant serve these orders on:

(a)    the First Respondent in accordance with rule 10.04 of the Federal Court Rules 2011 (Cth); and

(b)    the Third Respondent in accordance with rule 10.01 of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

TRACEY J:

1    Last month I found that two of the respondents, Mr Richard Hassett and the Construction, Forestry, Maritime, Mining and Energy Union (“the CFMMEU”) had contravened s 500 of the Fair Work Act 2009 (Cth) (“the FW Act”): see Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Brooker Highway Case) [2018] FCA 1081 (“the liability judgment”). These reasons should be read in conjunction with those in the liability judgment.

2    The parties have since filed written submissions relating to pecuniary penalties and other relief sought by the Commissioner.

3    The Commissioner has sought:

    declarations that Mr Hassett and the CFMMEU had each contravened s 500 of the Act on multiple occasions on 12 October 2016;

    the imposition of pecuniary penalties on each respondent;

    an order that those penalties be paid to the Commonwealth within 28 days;

    an order that Mr Hassett pay any pecuniary penalty imposed on him personally and that he not seek or receive financial reimbursement from the CFMMEU of such penalty once paid; and

    that there be no order as to costs.

DECLARATIONS

4    The respondents did not oppose the granting of declaratory relief but opposed the form of declarations proposed by the Commissioner. They suggested alternative declarations. For reasons which will emerge later in these reasons, I consider that the declarations proposed by the respondents more closely reflect the terms of the findings made in the liability judgment than those suggested by the Commissioner.

5    In a recent decision I have had occasion to hold that well-established principle justifies the making of declarations of the kind sought by the Commissioner in the present case: see Australian Building and Construction Commission v Construction, Forestry, Maritime, Mining and Energy Union (The Bendigo Theatre Case) (No 2) [2018] FCA 1211 at [6]-[9].

6    I adhere to what I there said. Declarations, substantially in the form proposed by the Commissioner, should be made.

PECUNIARY PENALTIES

Quantum

7    The Court has power to impose pecuniary penalties if satisfied that a respondent has contravened a civil remedy provision: see s 546(1) of the FW Act. Section 500 is a civil remedy provision. The maximum penalties prescribed for a contravention of s 500 at relevant times was 300 penalty units (for a body corporate) and 60 penalty units (for an individual): see ss 539(2) and 546(2) of the Act. The value of a penalty unit at the time of the contraventions presently under consideration was $180. As a result the maximum penalty available in respect of the CFMMEU was $54,000 and for Mr Hassett, $10,800: see s 12 of the Act and Crimes Act 1914 (Cth) s 4AA(1). The Court may order than any pecuniary penalty be paid to the Commonwealth: see s 546(3)(a).

Guiding principles

8    In The Bendigo Theatre Case (No 2) I summarised the principles which guide the Court in the determination of appropriate pecuniary penalties: see at [13]-[32]. I do not need to restate them but I have had regard to them for the purpose of fixing penalties in the present proceeding.

The number of contraventions

9    The misconduct on which the Commissioner relied occurred in the course of a period of about two hours after Mr Hassett had entered the construction site on 12 October 2016.

10    The Commissioner alleged that Mr Hassett had contravened s 500 of the FW Act on four separate occasions on that day. The relevant events were said to be:

    his failure to give prior notice of his original entry in accordance with s 487 of the FW Act;

    his remaining on the premises and exercising rights under the Work Health and Safety Act 2012 (Tas) (“the WHS Act”);

    his failing to give prior notice of his entry as required by s 122 of the WHS Act; and

    his conduct in acting in an aggressive, demeaning and abusive manner towards managers and others present whilst he was on the site.

11    The Commissioner pleaded, in the alternative, that the totality of this misconduct constituted a single contravention of s 500 by Mr Hassett.

12    I rejected the second and third claims because I did not consider that Mr Hassett had exercised rights under the WHS Act whilst on the site.

13    In oral submissions, in the course of the penalty hearing, the Commissioner contended that there had been three contraventions of s 500. They were:

    Mr Hassett remaining on site after his right to do so was abrogated by the operation of s 486 of the FW Act.

    His failure to give notice of his intention to attend the site and his dismissive response upon being reminded of his obligation.

    His aggressive conduct and his use of foul and abusive language over a period of almost two hours after being advised that he was not entitled to be on the site.

14    I explained my reasons for holding that Mr Hassett had contravened s 500 in the liability judgment at [132]-[133]:

132    I accept the respondents’ submission that Mr Hassett’s failure to give prior notice of his attendance under s 487, standing alone, may not have given rise to a contravention of s 500: The Laverton North and Cheltenham Premises Case at [6]-[7] (Allsop CJ) and [200]-[201] (White J); cf at [122] (Tracey J). The failure to satisfy the notice requirement was, however, accompanied by other misconduct. He was dismissive of Mr Schwaiger’s advice about compliance with the requirements of the FW Act. When Mr Hassett was challenged as to his right to be on the site he failed to leave. He proceeded to embark on a safety inspection and his presence distracted two of the site managers from their normal duties.

133    Furthermore, whilst on the site, Mr Hassett acted in an improper manner over a protracted period. His aggressive approach and his repeated use of foul and abusive language, directed to the managers, departed from the standards of conduct that a reasonable person, with knowledge of the duties, powers and authorities of permit holders, would expect.

15    As can be seen from these passages the contravention occurred because Mr Hassett had failed to comply with the notice requirements of s 487, had responded dismissively when challenged about his failure to give this notice, had failed to leave the site when told that he was not entitled to be there, had remained on the site for almost two hours after being challenged and, during that period, had repeatedly directed foul and abusive language and made personally disparaging statements to site managers. A number of managers were distracted from their normal duties because of the need to supervise Mr Hassett’s conduct on the site. It was a combination of these elements of misconduct which led to my finding that Mr Hassett had contravened s 500 on 12 October 2016: see the liability judgment at [135].

16    These disparate elements form part of a continuum and, together, constituted a single contravention.

17    A single penalty is appropriate.

18    One of the reasons which led the Commissioner to form the view that I had found multiple contraventions by Mr Hassett was the use of the plural at [136], [140] and [141], in that part of my reasons in the liability judgment which dealt with the CFMMEU’s liability. The use of the plural in these sections was an error as is clear from the use of the singular in [142].

Mr Hassett

19    At the time of the contravention Mr Hassett had not been penalised for contravening the FW Act or its predecessors. He had, however, engaged in earlier contraventions of s 500 on another site in Tasmania: see Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Parliament Square Case) (No 2) [2018] FCA [2018] FCA 1201. His liability for that misconduct had not been established in the Court prior to 12 October 2016: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Parliament Square Case) [2018] FCA 1080.

20    Mr Hassett has failed to acknowledge that his contravening conduct is not acceptable on construction sites and has exhibited no contrition for his misconduct. Nor has he provided the Court with any assurances that there will no repetition of his deplorable approach to his duties as a permit holder and union official.

21    Within minutes of entering the site Mr Hassett had been advised that he was not entitled to be there because of his failure to give prior notice. As a permit holder he was, or should have been, well aware that his entry without notice meant that he was not entitled to exercise rights as a permit holder on that day: see s 486 of the FW Act. Not only was he dismissive of the advice given to him by managers but he persisted in verbally abusing managers throughout his time on the site. The language used is essayed in the liability judgment at [22]. It is no understatement to describe his verbal outbursts as “insulting, demeaning, indecent and profane”. These outbursts persisted despite protestations by those around him (including a fellow union official) who plainly considered that Mr Hassett had crossed the line of propriety.

22    A number of managers were distracted from their normal duties during the period that Mr Hassett was on site.

23    I regard this misconduct as extremely serious. It constituted a deliberate and flagrant abrogation of the responsibilities that fell upon Mr Hassett as a permit holder under the FW Act. His failure to give notice before entering the site and to comply with other requirements, imposed on permit holders by the FW Act, gave effect to a union policy. So much is evident from what Mr Hassett said at the meeting with managers on 5 October 2016: “We don’t recognise the Code and you know you’re not going to get Right of Entry notices so you’re just causing a fight.”

24    A penalty of $7,500 is appropriate.

25    The Commissioner applied for an order that Mr Hassett pay this penalty personally. More specifically he invited the Court to impose a personal payment order framed consistently with that made by the Full Court in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (No 2) [2018] FCAFC 117. Such an order would require Mr Hassett to pay the penalty imposed by the Court personally and not seek to be compensated by the CFMMEU or accept any funds from that organisation which are related to his payment of the penalty.

26    A similar application was made in The Parliament Square Case (No 2) in respect of penalties imposed on Mr Hassett for contraventions of s 500 of the FW Act. I determined not to make such an order in that case: see at [40]-[44].

27    I am mindful of what I there said about the prospect that the Court might be more willing to make a personal payment order in the event of further contraventions of s 500 by Mr Hassett.

28    The Commissioner emphasised that Mr Hassett’s conduct on 12 October 2016 was far more egregious than that in which he had engaged in The Parliament Square Case. His aggressive behaviour, his contempt for managers who challenged his right to be on the site and his repeated use of foul and profane language over a long period, weighed, it was contended, in favour of the making of a personal payment order.

29    I acknowledge that the Commissioner’s case for the making of such an order in the present case is stronger than that in The Parliament Square Case. That said, it remains the case there must be an established need to deter Mr Hassett from future misconduct.

30    The contravention which is presently under consideration occurred after those dealt with in The Parliament Square Case but before Mr Hassett had been found by the Court to have engaged in contraventions of s 500. He was not on notice of the risks he faced were he to re-offend.

31    I do not, therefore, consider that this is an appropriate case to make a personal payment order.

The CFMMEU

32    The CFMMEU’s liability derives from that of Mr Hassett.

33    What I have said in The Bendigo Theatre Case (No 2) at [70]-[75] about the gravity of the union’s ongoing offending applies with equal force in the present case.

34    I do not repeat what I there said. I would add, however, that the statements made by the union’s officials in this case make plain that Mr Hassett’s misconduct occurred because he was giving effect to a union policy. He said as much on 5 October 2016 (above at [23]). His colleague, Mr Harkins, who was also present, was even more explicit. When reminded of the legislative requirements regulating rights of entry to construction sites he responded by saying:

You know we don’t do that. My boss is bigger than your boss. This is a bullshit law and why would we comply with it? We can get around it. We can be a pain in the arse.

The context makes clear that he was speaking of the union as his “boss”.

35    The summary of cases which was submitted by the Commissioner in this proceeding dealt with contravening conduct by the CFMEU in the decade between 2006 and 2016. It essayed scores of contraventions. Of these there were 21 cases which had been completed prior to the events presently under consideration. The union noted that three of those cases involved matters before the Australian Industrial Relations Commission rather than the Federal Court of Australia. In these 21 cases there were more than 60 findings of contraventions of right of entry provisions by officials of the union.

36    This is yet another example of the long standing and continuing determination of the CFMMEU, acting through its officials, to flout the law in pursuit of its industrial ends.

37    A penalty of $50,000 should be imposed for this contravention of the FW Act.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated:    16 August 2018