FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Gava [2018] FCA 1480

ORDERS

PENAL NOTICE

TO:     MARK GAVA AND THE CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

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.    On 1 December 2016, the First Respondent, Mark Gava, contravened s 503(1) of the Fair Work Act 2009 (Cth) (the FW Act) by signing and causing an entry notice to be sent to Hansen Yuncken Pty Ltd with the intention of giving the impression that he was authorised to enter the site of the Transforming Health Project at the Flinders Medical Centre (the FMC Site).

2.    On 2 December 2016, the First Respondent, Mark Gava, contravened s 503(1) of the FW Act by entering the FMC Site pursuant to the said entry notice with the intention of giving the impression that he was authorised to enter the site pursuant to s 484 of the FW Act.

3.    By reason of s 793 of the FW Act, the Second Respondent (the CFMMEU) contravened s 503(1) of the FW Act on 1 December 2016 by the conduct of Mark Gava which is the subject of the first declaration.

4.    By reason of s 793 of the FW Act, the CFMMEU contravened s 503(1) of the FW Act on 2 December 2016 by the conduct of Mark Gava which is the subject of the second declaration.

THE COURT ORDERS THAT:

1.    Mark Gava pay a pecuniary penalty of $3,500 in respect of his contravention of s 503(1) which is the subject of the first declaration above.

2.    Mark Gava pay a pecuniary penalty of $2,500 in respect of his contravention of s 503(1) which is the subject of the second declaration above.

3.    The CFMMEU pay a pecuniary penalty of $40,000 in respect of its contravention of s 503(1) which is the subject of the third declaration above.

4.    The CFMMEU pay a pecuniary penalty of $28,000 in respect of its contravention of s 503(1) which is the subject of the fourth declaration above.

5.    Mark Gava pay the penalties referred to in Orders 1 and 2 to the Commonwealth of Australia through the office of the Australian Building and Construction Commission within 90 days.

6.    The CFMMEU pay the penalties referred to in Orders 3 and 4 to the Commonwealth of Australia through the office of the Australian Building and Construction Commission within 28 days.

7.    The application of the Applicant for a personal payment order in respect of the penalties imposed on Mark Gava is refused.

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

REASONS FOR JUDGMENT

WHITE J:

1    The Applicant (the Commissioner) seeks declarations and the imposition of penalties on the First Respondent (Mr Gava) and the Second Respondent, the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) (together “the Respondents”) in respect of contraventions of s 503 of the Fair Work Act 2009 (Cth) (the FW Act) in December 2016. Mr Gava was at the time an employed organiser of the CFMMEU, which was then known as the Construction, Forestry, Mining and Energy Union.

2    The Commissioner alleges that, on 1 December 2016, Mr Gava caused a notice of entry for the purposes of s 487 of the FW Act to be sent to Hansen Yuncken Pty Ltd (Hansen Yuncken). At that time, Hansen Yuncken was the head contractor on the Transforming Health Project at the Flinders Medical Centre (FMC Site). In the notice, Mr Gava asserted that he had been issued with an entry permit under s 512 of the FW Act, that he intended to enter the FMC Site on the following day, and that the entry was authorised pursuant to s 484 of the FW Act.

3    Mr Gava did not hold an entry permit on 1 and 2 December 2016 as his previous permit had expired on 28 November 2016 and a new permit had not been issued to him. He admits that at material times on the 1 and 2 December 2016, he had known that he did not have an entry permit.

4    Despite those circumstances, Mr Gava did enter the FMC Site on 2 December 2016 and, when challenged by the Hansen Yuncken Site Manager, claimed, falsely, that he was unaware that his entry permit had expired.

5    Section 503 of the FW Act provides as follows:

503 Misrepresentations about things authorised by this Part

(1)    A person must not take action:

(a)    with the intention of giving the impression; or

(b)    reckless as to whether the impression is given;

that the doing of a thing is authorised by this Part if it is not so authorised.

Note:    This subsection is a civil remedy provision (see Part 4-1).

(2)    Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised.

6    In the defence of Mr Gava and the CFMMEU filed on 18 December 2017, Mr Gava admitted the allegations concerning his conduct and admitted that his conduct on each of 1 and 2 December 2016 constituted contraventions of s 503. He has maintained these admissions in the two iterations of the defence filed since the original. However, in the submissions on penalty, counsel for Mr Gava and the CFMMEU submitted that the Court should find that the conduct on 1 and 2 December 2016 constituted only a single contravention of s 503.

7    The Commissioner alleges that, by reason of the operation of ss 550 and 793 of the FW Act and Mr Gava’s conduct, the CFMMEU also contravened s 503 on both days. In the original defence and in an amended defence filed on 19 February 2018, the CFMMEU admitted these allegations on the basis that Mr Gava had been acting within the scope of his apparent authority. It denied that he had been acting within the scope of his actual authority.

8    As the Commissioner did not accept that qualification, it appeared that this would be an issue which the Court would have to determine. The parties agreed that it could be determined in the course of the penalty hearing. However, by the further amended defence filed on 16 July 2018, the CFMMEU admitted the Commissioner’s allegation that Mr Gava had at all relevant times been acting within the scope of his actual and apparent authority. It accepted that, by reason of s 793(1) of the FW Act, Mr Gava’s conduct on both days was to be taken to be its conduct and that, by reason of s 793(2) of the FW Act, Mr Gava’s intention was to be taken as its intention.

9    The penalty hearing was originally listed for 9 April 2018. However, at the request of the parties, the Court deferred the hearing until after delivery of the decision in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97. That judgment was delivered on 25 June 2018.

Penalties and principles

10    Section 503 is a civil remedy provision. By s 546(1) of the FW Act, when the Court is satisfied that a person has contravened a civil remedy provision, it may order a contravener to pay a pecuniary penalty which the Court considers appropriate.

11    The maximum number of penalty units fixed by ss 539 and 546(2) for contraventions of s 503(1) is 60 in the case of Mr Gava and 300 in the case of the CFMMEU. This means the maximum penalty which can be imposed for each contravention is $10,800 and $54,000 respectively.

12    Section 557 of the FW Act, which requires some contraventions to be taken to constitute a single contravention, is inapplicable in the present case, as s 503 is not listed as one of the provisions to which it applies. Nevertheless, it is appropriate that the Court take account of conduct constituting two or more contraventions which overlaps, in order that the Respondents not be penalised twice for the same conduct.

13    The Commissioner contended that penalties in the range $6,480-$8,640 should be imposed on Mr Gava in respect of each of his contraventions and that penalties in the range $37,800-$48,600 should be imposed on the CFMMEU in respect of each of its two contraventions constituted by Mr Gava’s conduct.

14    The Respondents submitted that a single penalty should be imposed on each of Mr Gava and the CFMMEU: in the case of Mr Gava a penalty in the range $1,620-$2,700 and in the case of the CFMMEU a penalty in the range of $10,800-$16,200.

15    The principles bearing upon the assessment of an appropriate penalty are well-established: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Agreed Penalties Case) [2017] FCAFC 113, (2017) 254 FCR 68 at [98]-[107]; The Non-Indemnification Personal Payment Case at [19]-[22]. They need not be repeated in detail presently.

16    The object of the imposition of a civil penalty is deterrence, both specific and general: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, (2015) 258 CLR 482 at [55]; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 351 ALR 190 at [116]. The Court is to determine penalties which are proportionate to the contravening conduct and to the contravener’s circumstances by a process of instinctive synthesis after taking into account all relevant factors. Those factors include the nature, character and seriousness of the conduct; the loss and damage caused (if any); the circumstances in which the conduct took place; the size of the contravener and its degree of power; the deliberateness of the conduct and the time over which it occurred; the degree of involvement of senior officials or management; the culture of the organisation as to compliance or contravention; any co-operation with the regulator; and contrition: The Non-Indemnification Personal Payment Case at [20].

Section 503 in context

17    In order to provide the setting for the determination of the issues between the parties and the appropriate penalties, it is appropriate to outline the scheme of entry rights for which Div 2 of Pt 3-4 of the FW Act provides. The following outline draws on the summary I gave in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 (the Lend Lease Sites Case), at [39]-[47].

18    Division 2 of Pt 3-4 of the FW Act grants “permit holders” the right to enter premises for the purpose of investigating breaches of industrial legislation and instruments and to hold discussions with employees. In addition, it regulates in some respects the exercise of rights by those who hold permits under State or Territory occupational, health and safety legislation.

19    It is the purpose for which s 484 provides which is pertinent in this case. Section 484 provides:

484 Entry to hold discussions

A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:

(a)    who perform work on the premises; and

(b)    whose industrial interests the permit holder’s organisation is entitled to represent; and

(c)    who wish to participate in those discussions.

…

20    Absent the provisions in Pt 3-4, union officials would have no right to enter the premises of others without the agreement of the occupier. Unauthorised entries would be unlawful and could amount to criminal offences. 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. …

21    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.

22    A number of the 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). A person to whom the FWC has issued a permit is a “permit holder” for the purposes of the FW Act – see the definition in s 12.

23    Secondly, as already noted, Pt 3-4 confines the purposes for which a permit holder may enter.

24    Thirdly, Pt 3-4 regulates the time and manner in which rights of entry may be exercised. Section 487(1) provides (relevantly for present purposes) that the permit holder must give the occupier of premises an “entry notice” for the entry which complies with s 518. In relation to entries under s 484, s 518(3) requires that an entry notice:

(a)    specify that section as the provision that authorises the entry; and

(b)    contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of an employee or TCF award worker who performs work on the premises; and

(c)    specify the provision of the organisation’s rules that entitles the organisation to represent the employee or TCF award worker.

25    The effect of the provision of a notice of entry in accordance with ss 487 and 518 is that the occupier or employer will be given some forewarning of the proposed entry and information which will enable its purpose and lawfulness to be assessed. In this context, the need for the information in the entry notice to be accurate is obvious. The times at which permit holders may enter premises and at which they may hold discussions with employees are regulated (s 490), as are the places at which they may meet the employees (s 492).

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

27    Section 503 which, like ss 500-502, forms part of Div 4 of Pt 3-4 is another element of the scheme of balancing of interests in relation to rights of entry. Its evident purpose is to prevent persons being misled about the conduct which Pt 3-4 authorises. Section 503 had a counterpart in s 768 of the Workplace Relations Act 1996 (Cth) (the WR Act). A person must not take “action” with the intention of giving the impression, or being reckless as to whether the impression is given, that the “doing of a thing” is authorised by Pt 3-4, when it is not so authorised. Section 503 reflects a legislative concern that the scheme of rights established by Pt 3-4 and the clothing of persons with the ability to exercise those rights should not be used as a guise for conduct which the Part does not authorise. The making of misrepresentations as to what is authorised by the Part is proscribed, but the operation of s 503(1) is not limited to misrepresentations in the commonly understood sense of that term. It extends to any action taken with the intention of “giving the impression” or in which the person is reckless as to the giving of the “impression” that a “thing” is authorised by Pt 3-4 when it is not.

28    Putting s 503(2) to one side, there are three principal elements to a contravention of s 503(1):

(a)    a person takes “action”;

(b)    in taking the action, the person intends to give the impression that the doing of “a thing” is authorised by Pt 3-4 or is at least reckless as to whether that impression is given; and

(c)    the doing of the “thing” is not authorised by Pt 3-4.

Elements (a) and (c) will be determined objectively. Element (b) requires proof of the person’s state of mind in taking the action. As is the case in many areas of law, the person’s state of mind will be a matter of inference from the surrounding circumstances, including from the words and the actions by the person.

29    The term “take action” is capable of encompassing diverse forms of conduct. It may encompass oral and written communications as well as other conduct.

30    The “thing” which must be the subject of the intended impression need not, and will often not, be the same as the action comprising the first element. The action may be taken by the person who will do the thing or by one person with the intention of giving the impression that the doing of a thing by another is authorised.

31    It is not necessary that the action taken with the intention of giving a misleading impression, or with recklessness as to whether that impression be given, succeeds in doing so. The proscription in s 503 does not turn on the effect produced by the action, but on the state of mind with which the action is taken.

32    Paragraph [2001] of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) gave three examples of the kind of behaviour which may infringe s 503(1). The first two were:

(a)    persons representing themselves to be permit holders when they do not hold a valid entry permit; and

(b)    persons asserting that they are entitled to represent particular employees when their union’s eligibility rules do not extend to that class of employees.

33    At its heart, s 503 seeks to prevent misrepresentations and the creation of misleading impressions as to the matters authorised by Pt 3-4 of the FW Act.

The conduct

34    In late 2016, Mr Gava had been employed as an organiser by the CFMMEU for about 15 years.

35    As the head contractor for the Transforming Health Project, Hansen Yuncken operated a site office and other facilities associated with the Project at the FMC Site.

36    On 1 December 2016 at 10.30 am, Mr Gava signed a notice of entry in the form prescribed by reg 3.27 of the Fair Work Regulations 2009 (Cth), as follows:

Form 2 Entry Notice

(regulation 3.27)

Fair Work Regulations 2009, regulation 3.27

ENTRY NOTICE

I, Mark Gava of the CFMEU, and having been issued an entry permit under section 512 of the Fair Work Act 2009, give notice that I propose to enter,

Hansen Yuncken Flinders Medical

on 2-12-16

As the entry is authorised by section 484 of the Fair Work Act 2009 (which deals with entry to hold discussions), I declare that CFMEU, under rule 2(A), 2(B), 2(E), is entitled to represent the industrial interests of an employee who performs work on the premises mentioned above.

Given at 10.30am

Dated 1-12-16

Signed

Signature of permit holder

The underlined portions of this form were in Mr Gava’s handwriting. Mr Gava caused the entry notice to be sent by facsimile to Hansen Yuncken at its head office at Fullarton Road, Dulwich.

37    As is apparent, Mr Gava stated in the entry notice that he held an entry permit under s 512 of the FW Act and that his entry was authorised by s 484 of the FW Act.

38    Another CFMMEU organiser (Andrew Penny) also signed (on 1 December 2016) an entry notice giving notice of an entry on to the FMC Site on 2 December 2016. The evidence did not indicate whether both entry notices were sent to Hansen Yuncken at the same time.

39    On 2 December 2016 at about 1.30 pm, Mr Gava and Mr Penny entered the FMC Site. Neither signed or completed the Visitor Register. Shortly after their entry, Mr Copeland, Hansen Yuncken’s Site Manager, had a conversation to the following effect with Mr Gava:

Mr Copeland:        [A]re you aware your right of entry permit has expired?

Mr Gava:    No I am not aware of that. I didn’t know that, our office handles that, I’d be surprised if our girls didn’t know that.

Mr Copeland:    Surely you must know.

Mr Gava:    No.

Mr Copeland:    [J]ust for your knowledge you’ve been reported for a breach already for entering an entry notice without a permit. I am going to have to report you for being here.

Mr Gava:    Whatever you have to do, we were invited here by Form 700 and we are going to speak to the guys.

40    Mr Copeland’s statements indicate that Hansen Yuncken was aware, at least by the time of the entry, that Mr Gava did not have an entry permit.

41    Mr Gava and Mr Penny did not leave but proceeded towards the lunch sheds on the FMC Site. The materials before the Court did not disclose what occurred thereafter.

The number of contraventions

42    Counsel for Mr Gava and the CFMMEU submitted that each of Mr Gava and the CFMMEU had committed only a single contravention of s 503(1). He contended that s 503(1) proscribes a form of action, namely, the process of acting in a way which gives the impression that the person is authorised to do a thing by Pt 3-4 of the FW Act when that action is not so authorised. In the present case, counsel submitted that the giving of the notice by Mr Gava and his entry on the following day, were part of the same action and so constituted a single contravention of s 503(1).

43    That submission cannot be accepted. First, it is inconsistent with the pleaded admissions by M Gava that his conduct on each of 1 and 2 December 2016 constituted contraventions of s 503(1) of the FW Act – see the pleaded admissions to [13]-[16] of the Further Amended Statement of Claim (the FASC). Likewise, it is inconsistent with the pleaded admissions of the CFMMEU that it is to be taken to have contravened s 503(1) on each occasion when it was contravened by Mr Gava – see the admissions to [17]-[19] of the FASC.

44    Counsel submitted that the admissions were qualified by [21] of the Further Amended Defence in which, in response to the plea concerning the form of relief which is appropriate, the Respondents had pleaded that the Commissioner was entitled only to a declaration that there had been a single contravention of s 503 by each of Mr Gava and the CFMMEU. However, that submission faces two difficulties: first, the earlier pleaded admissions are not made subject to [21]; and, secondly, [21] concerns only the form of relief appropriate to give effect to the matters established by the Respondents’ admissions. Counsel acknowledged that, if [21] of the Further Amended Defence is put to one side, the earlier paragraphs contained admissions of contraventions of s 503 on each of 1 and 2 December 2016.

45    Secondly, and in any event, Mr Gava’s conduct on 1 and 2 December 2016 involved separate and distinct actions. One was the giving of the notice and the other was the act of entry. Section 503(1) does not require that those separate acts be regarded as a form of composite single action. It contemplates, plainly, that the “action” may consist of conduct of different kinds. In a case of the present kind, it is capable of encompassing Mr Gava’s conduct in giving the entry notice and, separately, his conduct in entering the premises. Actions of that kind are not interdependent. The FW Act contemplates that they will occur at different times, as the notice of entry is to be given at least 24 hours, but not more than 14 days, before the entry (s 487(3)). Further, a person may give notice of entry in a way which contravenes s 503(1) but not seek subsequently to enter the premises pursuant to that notice. Likewise, a person may enter premises in a way which contravenes s 503(1) even though he or she gave a notice of entry which did not contravene that provision.

46    There may be cases in which the action contravening s 503 consists of two or more related steps and in which it can be said that each is an integer of the one action. The present is not such a case. By the action in giving, or in causing to be given, the notice of 1 December 2016, Mr Gava asserted that he held an entry permit issued under s 512 and that his foreshadowed entry was authorised by s 484. Mr Gava has admitted that his intention in doing so was to give the impression that his entry was authorised by Pt 3-4. The elements of a contravention by Mr Gava’s conduct on 1 December 2016 were thereby complete.

47    I raised with the parties the question of whether Mr Gava’s conduct on 1 December 2016 could also be regarded as action intended to give the impression that the giving of the notice itself was authorised by Pt 3-4. However, it is not necessary to pursue that question as it was not the Commissioner’s pleaded case, and it is not the subject of Mr Gava’s admission.

48    Mr Gava’s action on 2 December 2016 was a different kind. It comprised his physical entry on to the FMC Site. Mr Gava admits that he entered the FMC Site pursuant to the purported entry notice sent to Hansen Yuncken the previous day. He also admits that he entered the FMC Site with the intention of giving the impression that he was authorised to do so by Pt 3-4. His conduct bears out that admission. It is evident that Mr Gava entered the FMC Site in the manner of a person authorised to so enter. Further, Mr Gava entered the FMC Site in the company of Mr Penny, who did have an entry permit and who had given a proper notice of entry. That would have added to the impression that he was entering as of right under the FW Act. When challenged, Mr Gava feigned to be unaware that his entry permit had expired. By these actions on 2 December 2016, Mr Gava represented implicitly that he was authorised to exercise rights under Pt 3-4.

49    There is some overlap between the two actions by reason of Mr Gava having entered the FMC Site on 2 December 2016 pursuant to the invalid notice sent on 1 December 2016 but, nevertheless, they are separate and distinct. As already indicated, they cannot reasonably be regarded as a composite action constituting a single contravention. Accordingly, this submission of the Respondents is rejected.

50    The declarations which the Court makes should reflect the separate contraventions. Likewise, penalties should be imposed on each of Mr Gava and the CFMMEU in respect of each contravention.

The characterisation of the conduct

51    Counsel for the Commissioner submitted that a number of matters warranted Mr Gava’s conduct being characterised as serious. His conduct on 1 and 2 December 2016 had been deliberate and planned. Mr Gava had had the opportunity to reflect overnight on 1 December 2016 on the wrongfulness of his conduct and he had chosen to proceed regardless. His state of mind was one of intention and not the lesser state of recklessness. Mr Gava is an experienced organiser who has held an entry permit for many years. He was not a person who was new to the job in which case inexperience may have been a mitigating factor. Mr Gava set out to mislead Hansen Yuncken.

52    Counsel emphasised, appropriately, the close temporal nexus between the contraventions on 1 and 2 December 2016 and the imposition of penalties on Mr Gava only some seven months previously, on 22 April 2016, in the Lend Lease Sites Case. The Court had then imposed penalties of $1,400 and $1,000 on Mr Gava for two contraventions of s 500 of the FW Act which he had committed on 30 October 2013, and one penalty of $1,400 for a contravention of s 348 of the FW Act, also committed on 30 October 2013. Counsel submitted that the fact that Mr Gava had committed the subject contraventions so soon after the imposition of penalties for the previous contraventions, meant that his conduct should be viewed more seriously. I accept that this is so – see The Non-Indemnification Personal Payment Case at [22]. See also [23]-[32] of the Lend Lease Sites Case.

53    There are some matters which mitigate the seriousness of Mr Gava’s conduct. Although his actions were deliberate and he intended to give a misleading impression, the contraventions were isolated. The Commissioner does not allege any further contraventions of a like kind by Mr Gava at the end of 2016 or early 2017. Further, although Mr Gava continued as an employed organiser of the CFMMEU until 9 March 2018, it is not suggested that there have been further contraventions of a like kind.

54    It is apparent from Mr Copeland’s statements to Mr Gava on 2 December 2016 that Hansen Yuncken was not misled by either of Mr Gava’s actions, and there is no suggestion that either action caused any loss or disruption. Any claim to that effect would have been difficult to sustain given that Mr Penny was entitled to exercise a right of entry on 2 December 2016, and there is no suggestion that his conduct was productive of loss or disruption.

55    The Commissioner also submitted that the penalty should be assessed on the basis that Mr Gava’s mental state was one of defiance. There are some elements of Mr Gava’s conduct which suggest that that characterisation is appropriate, in particular, his response to Mr Copeland when challenged. On the other hand, it is not suggested that the actions were incidents in a form of systematic conduct. My impression is that this is a case in which Mr Gava knew that his entry permit had expired but was willing to see if he could get away with an unauthorised entry. In order to do so, he was prepared, dishonestly, to misrepresent the position to Hansen Yuncken. In the events which happened, he did not “get away with it” and, when challenged, he chose to lie.

56    In summary, I consider that Mr Gava’s conduct is to be viewed seriously but it is not the most serious contravening conduct of its type.

The effect of Mr Gava’s resignation

57    It was an agreed fact that Mr Gava had ceased to be an employee or official of the CFMMEU with effect from 9 March 2018. Counsel for the Respondents submitted that this made considerations of personal deterrence less important. In support, counsel referred to the following passages in the Lend Lease Sites Case:

[177]    Mr Harrison was employed by the CFMEU as an organiser in the period 5 May 2008 to 21 February 2014. … The respondents submitted that, as Mr Harrison has resigned from his employment as an organiser with the CFMEU, personal deterrence is less important in his case. I accept that that is so.

…

[190]    Mr Stephenson is no longer employed by the CFMEU. He has not worked for the CFMEU or any other union since July 2014 and does not hold a permit under Pt 3-4. … I accept that it is unlikely that Mr Stephenson will work again as a union organiser and that this reduces the need for specific deterrence to be a prominent consideration in the fixing of penalty in his case.

58    This does not mean that considerations of personal deterrence are wholly irrelevant. I respectfully agree with the reasons of Charlesworth J in Australian Building and Construction Commissioner v McDermott (No 3) [2018] FCA 1105 (ABCC v McDermott) on this topic:

[38]    As to specific deterrence, Mr McDermott is no longer the holder of a permit issued under the Act, nor is he an official of the Union. However, there is no evidence to suggest that Mr McDermott no longer participates in activities to which the Act applies, nor is there evidence to support a conclusion that he cannot or will not re-join the Union as an official, whether in a managerial role or in some other capacity. In the absence of such evidence, I would reject the submission that considerations of specific deterrence are wholly irrelevant. Ultimately, it is considerations of general deterrence that loom large in Mr McDermott’s case, particularly having regard to his senior position at the time of this contravention and the defiant mental attitude accompanying his conduct.

…

[88]    I have taken into account that Mr Cartledge has, since making submissions as to penalty, ceased to be an employee and an official of the Union. However, the need for specific deterrence cannot be discounted entirely whilst there remains a possibility that Mr Cartledge will in the future again be a union official or a permit holder, or otherwise be in a position to influence others in respect of their compliance with the Act. Mr Cartledge has adduced no evidence as to his future employment intentions and I am not prepared to assume, to his benefit, that he will no longer engage in tasks or activities that are regulated by the Act.

59    I will proceed on the basis that considerations of personal deterrence are not as prominent as they would be if Mr Gava was continuing in employment as an organiser or in some other official capacity. However, those considerations are not wholly irrelevant.

Co-operation, culture and contrition

60    Both Mr Gava and the CFMMEU are entitled to some credit on account of the early and extensive admissions of the Commissioner’s allegations. As noted earlier, the only allegation which was initially disputed was that of whether Mr Gava had the CFMMEU’s actual authority for the purposes of s 793(1) of the FW Act.

61    However, neither Mr Gava nor the CFMMEU has made any expression of regret or contrition. Nor has the CFMMEU provided the Court with any evidence of steps it has taken with the view to ensuring that neither it nor its officials contravene s 503 again.

62    I will refer again shortly to the CFMMEU’s appalling record of contraventions of industrial legislation. I refer to it presently because of its significance to the attitude and culture of the CFMMEU. In this respect, I respectfully agree with the following remarks of Barker J in Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (No 2) [2018] FCA 897:

[128]    [I]t has to be said that the CFMEU, given its history of involvement in industrial disputation and prior contraventions, has to take responsibility for the conduct of its officials and surely, at one point or another, must begin to take positive steps to educate its officials not to contravene the law and as to proper standards of conduct.

…

[130]    There is no evidence that any corrective action has been taken, either by Mr Upton or the CFMEU. As I say, it really is time where large and influential unions such as the CFMEU, like any other responsible entity in Australia that has been found responsible for contraventions of a regulatory system, acknowledge misconduct and take positive steps to correct it in the public interest. …

Course of conduct

63    Counsel for the Respondents submitted that Mr Gava’s conduct on 1 and 2 December 2016 should be regarded as incidents in a single course of conduct. I accept that that is so. Mr Gava’s entry on to the FMC Site on 2 December 2016 was consequent upon the entry notice which he had caused to be provided to Hansen Yuncken on the previous day.

64    The characterisation of the two contraventions as having occurred in a single course of conduct has two consequences of present relevance: first, the Court must be careful to ensure that it does not, by the imposition of separate penalties for the two contraventions, penalise twice the same conduct; and, secondly, the Court may assess the Respondents’ culpability on the basis that the actions constituted a single incursion into contravening conduct.

65    The characterisation of contraventions as occurring in a single course of conduct does not mean that the Court may impose a single penalty for both contraventions. The Full Court made this point in The Agreed Penalties Case at [148]:

The important point to emphasise is that, contrary to the Commissioner’s submissions, neither the course of conduct principle nor the totality principle, properly considered and applied, permit, let alone require, the Court to impose a single penalty in respect of multiple contraventions of a pecuniary penalty provision. There is no doubt that, in an appropriate case involving multiple contraventions, the Court should consider whether the multiple contraventions arose from a course or separate courses of conduct. If the contraventions arose out of a course of conduct, the penalties imposed in relation to the contraventions should generally reflect that fact, otherwise there is a risk that the respondent will be doubly punished in respect of the relevant acts or omissions that make up the multiple contraventions. That is not to say that the Court can impose a single penalty in respect of each course of conduct. Likewise, there is no doubt that in an appropriate case involving multiple contraventions, the Court should, after fixing separate penalties for the contraventions, consider whether the aggregate penalty is excessive. If the aggregate is found to be excessive, the penalties should be adjusted so as to avoid that outcome. That is not to say that the Court can fix a single penalty for the multiple contraventions.

(Emphasis added)

66    The approach stated in The Agreed Penalties Case, has been applied in a number of decisions at first instance: Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 (Katzmann J); Australian Building and Construction Commissioner v Parker (No 2) [2017] FCA 1082 (Flick J); Australian Building and Construction Commissioner v Huddy (No 2) [2017] FCA 1088 (ABCC v Huddy) (White J); and Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Quest Apartments Case) (No 2) [2018] FCA 163 (Tracey J).

67    In Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; (2018) 357 ALR 55, the Full Court said:

[234]    The “course of conduct” or “one transaction” principle means that consideration should be given to whether the contraventions arise out of the same course of conduct or the one transaction, to determine whether it is appropriate that a “concurrent” or single penalty should be imposed for the contraventions. The principle was explained by Middleton and Gordon JJ in Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 194 IR 461 at [41]:

… 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.

(Emphasis omitted)

(Emphasis added)

68    I do not understand the Full Court in this passage to be suggesting that the fact that two or more contraventions occurred in a single course of conduct means that a single penalty may be imposed for all the contraventions. As the passage from Cahill quoted by the Full Court indicates, the Full Court was saying only that a single penalty (that is, a penalty for one contravention) may be appropriate in some instances in order to ensure that an offender is not penalised twice. It is not necessary in this case to consider whether s 546 of the FW Act may permit the Court to reflect the imposition of separate penalties in respect of multiple contraventions in a single sum – see Australian Competition and Consumer Commission v H.J. Heinz Company Australia Limited (No 2) [2018] FCA 1286 at [70]-[72].

69    In the present case, I consider that separate penalties should be imposed for the contraventions committed on 1 and 2 December 2016, but that account should be taken in the fixing of the penalties for the contraventions occurring on 2 December 2016 in that they were part of the course of conduct commenced by Mr Gava (and by his conduct, the CFMMEU) on the previous day.

Prior history of contraventions

70    I have already referred to Mr Gava’s history of previous contraventions.

71    The CFMMEU’s record of contraventions of industrial legislation is appalling. Since 2000, it has been found to have contravened industrial legislation on more than 140 separate occasions; in the period between 2008 and 2015, there were 23 separate proceedings brought against the CFMMEU for contraventions of Div 4 (ss 500-504) of Pt 3-4 of the FW Act or its predecessor, Div 7 of Pt 15 of the WR Act. Those proceedings involved 106 separate contraventions. There is one previous instance in which the CFMMEU has been found to have contravened s 768 of the WR Act, the predecessor provision to s 503 in the FW Act. In addition, the CFMMEU and its officials have previously been found to have contravened other provisions of the FW Act or the predecessor provisions of the WR Act proscribing misrepresentations on five occasions. These comprise four contraventions of s 349 of the FW Act and two contraventions of s 790 of the WR Act (the predecessor to s 349 of the FW Act).

72    On any view, this is a deplorable record of contraventions. It must be taken into account in assessing proportionate penalties in the present case.

Parity and consistency with other decisions

73    Counsel for the Respondents submitted that the Court should have regard to recent decisions involving the imposition of penalties on the CFMMEU and its officials. These were ABCC v Huddy; Australian Building and Construction Commissioner v Ingham (No 2) (the Enoggera Barracks Case) [2018] FCA 263; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 3) [2017] FCA 10; and ABCC v McDermott. Counsel submitted that, in fixing the penalties in the present case, the Court should “strive for reasonable consistency” with the penalties imposed in these cases.

74    In my opinion, comparison of the present case with other decisions of the Court is of limited utility. It is rare for two cases to be identical. Whatever points of similarity may be identified between two cases, there will always be points of difference. The parity principle (the principle that, all other things being equal, similar contraventions should incur similar penalties) is applicable only when the Court is imposing penalties on co-contraveners. In this respect, I venture to repeat my observations in Australian Competition and Consumer Commission v AGL South Australia Pty Ltd [2015] FCA 399 at [63]-[68]. Furthermore, the approach for which the Respondents contend has the potential to distract the Court from the fixing of penalties which are proportionate to the case before it by the required process of instinctive synthesis.

Fixing of penalties

75    Counsel for the Respondents did not provide the Court with any information concerning Mr Gava’s personal circumstances. It is accordingly not possible to take those circumstances into account in the assessment of the penalties in his case. I accept however, as previously noted, that Mr Gava is no longer employed by the CFMMEU.

76    Having regard to the matters already mentioned, I consider that a penalty of $3,500 is appropriate in respect of Mr Gava’s contravention of s 503(1) on 1 December 2016 and that a penalty of $2,500 is appropriate in respect of his contravention on 2 December 2016.

77    I impose penalties of $40,000 and $28,000 respectively on the CFMMEU in respect of its contraventions of s 503(1) constituted by Mr Gava’s conduct on each of 1 and 2 December 2016.

78    I do not consider that any of these penalties should be moderated on account of the totality principle.

A personal payment order

79    The Commissioner sought a personal payment order pursuant to s 546 of the FW Act in the same terms as 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, namely:

Mr Gava pay the penalties personally in that he not, whether before or after the payment of the penalties:

(a)    seek to have or encourage the CFMMEU in any way whatsoever, directly or indirectly, to pay to him or for his financial benefit in any way whatsoever, any money or financial benefit referrable to the payment of the penalties, whether in whole or in part; and

(b)    accept or receive from the CFMMEU in any way whatsoever, any money or financial benefit referrable to the payment of the penalties, whether in whole or in part.

80    The Respondents opposed the making of such an order. They did not contend that the terms of the order sought by the Commissioner were inappropriate, if the Court was otherwise satisfied that such an order should be made.

81    The power to make a personal payment order under s 546 is discretionary. In The Non-Indemnification Personal Payment Case, the Full Court said that the making of a personal payment order “must be appropriate, not to increase the “sting” of the proper penalty … but to ensure, as far as possible, that the burden of the proper penalty be recognised”, at [39].

82    The matters on which the Full Court relied in deciding that a personal payment order was appropriate in the circumstances of The Non-Indemnification Personal Payment Case included:

(a)    a registered organisation such as the CFMMEU can behave in the way it does only because individuals within it decide upon the action to be taken;

(b)    evidence in the case indicated that decisions in the CFMMEU concerning conduct constituting contraventions were made without regard to unlawfulness of that conduct;

(c)    the imposition of personal liability is one of the few mechanisms by which individual behaviour may be changed or affected and the compliance objectives of regulatory schemes advanced;

(d)    the penalty imposed on an individual must be a burden or have a sting in order to be a deterrent; and

(e)    the personal payment order would serve to bring home to the official (Mr Myles) and to others in his position that he and they cannot act in contravention of the FW Act in the expectation that union funds will be used to pay the penalties they incur.

83    These considerations are also present in the present case.

84    Since the decision on The Non-Indemnification Personal Payment Case, the making of personal payment orders has been considered in three proceedings. In each case, the Judge (Tracey J) declined to make a personal payment order.

85    In the first, Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bendigo Theatre Case) (No 2) [2018] FCA 1211 delivered on 14 August 2018, Tracey J attached significance to the circumstance that the official (Mr Tadic) did not have an extensive history of contraventions and that no penalties had been imposed on him for a decade, at [65].

86    In the second, Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Parliament Square Case) (No 2) [2018] FCA 1201, delivered on 16 August 2018, Tracey J considered that the absence of a record of previous contraventions by the official (Mr Hassett) and the prospect that he would, by reason of the penalties imposed, amend his ways, mitigated against the appropriateness of a personal payment order, at [44].

87    In the third, Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Brooker Highway Case) (No 2) [2018] FCA 1214, also delivered on 16 August 2016 and which also concerned Mr Hassett, Tracey J was influenced by the circumstance that the contraventions in question had occurred before the Court’s findings in The Parliament Square Case (No 2), with the consequence that Mr Hassett had not been “on notice of the risks he faced were he to re-offend”, at [30].

88    In pressing for a personal payment order in the present case, counsel for the Commissioner emphasised a number of matters, including the short period of time which had elapsed between the imposition of penalties on Mr Gava in the Lend Lease Sites Case (on 22 April 2016) and the subject contraventions; his attitude of defiance and indifference to compliance with the requirements of the FW Act which that short period indicated; the deliberateness of Mr Gava’s conduct and that he had had an actual intention to give a false impression; the absence of contrition; that persons in Mr Gava’s position should not be entitled to a period of grace before a personal payment order is made; and the need for general deterrence of others occupying similar positions. Counsel also referred to the decision of the Fair Work Commission in Construction, Forestry, Mining and Energy Union – Construction and General Division, SA Divisional Branch [2017] FWC 1227 in which Mr Gava is recorded as having told the Fair Work Commission that the CFMMEU had paid the penalties imposed on him in the Lend Lease Sites Case.

89    Counsel for the Respondents, on the other hand, submitted that the Court should adopt a similar approach to that of Tracey J. He emphasised that Mr Gava’s history of contraventions was much less extensive than that of Mr Myles, who was the subject of the order in the Non-Indemnification Personal Payment Case; that his contraventions were much less serious than those of Mr Myles; and that Mr Gava has ceased to be an official of the CFMMEU.

90    The existence or absence of a history of contraventions by an official is very relevant to the discretion concerning the making of a personal payment order but, in my opinion, it would be inappropriate for the Court to proceed on the basis that such an order should be made only when an official has such a history. The overriding consideration is whether the making of the order is appropriate so that the contravener will feel the burden or sting of the penalty. Such an order may be appropriate in a case of a first time contravener. Equally, the Court may be satisfied in the circumstances of a particular case that it is not appropriate even though the official has a history of contraventions.

91    I also consider that the Court ought not to proceed on the basis that contraveners are entitled to something akin to a period of grace before a personal payment order will be made.

92    In the present case, I consider that the submissions of the Commissioner have a good deal of force. However, ultimately, I am not persuaded that a personal payment order is appropriate presently. The two principal matters which lead me to that conclusion are that the contraventions of s 503 were isolated and that Mr Gava is no longer an employed organiser of the CFMMEU. These matters indicate that personal deterrence is not such a predominant factor in his case as it would otherwise have been.

93    It is a matter of speculation as to whether Mr Gava will resume such employment. If he does, and contravenes a civil remedy provision again, he may expect that the Court may take a different view about the appropriateness of a personal payment order. Obviously, whether a different view will be taken will depend on the circumstances then established before the Court.

Summary

94    In summary, I will make declarations with respect to the contraventions of each of Mr Gava and the CFMMEU on each of 1 and 2 December 2016.

95    In relation to Mr Gava, I impose a penalty of $3,500 in respect of his contravention of s 503(1) on 1 December 2016, and a penalty of $2,500 in respect of the contravention of s 503(1) on 2 December 2016.

96    In the case of the CFMMEU, I impose a penalty of $40,000 in respect of the contravention occurring on 1 December 2016 and a penalty of $28,000 in respect of the contravention occurring on 2 December 2016.

97    I decline to make a personal payment order with respect to the penalties imposed on Mr Gava.

98    The penalties in each case are to be paid to the Commonwealth through the office of the Commissioner. In the case of the CFMMEU, the penalties are to be paid within 28 days and in the case of Mr Gava, within 90 days.

Associate:

Dated:    2 October 2018