FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Ravbar (No 2) [2019] FCA 522

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent pay a penalty of $5,000 for his contravention of s 343 of the Fair Work Act 2009 (Cth).

2.    The third respondent pay a penalty of $3,500 for his contravention of s 343 of the Fair Work Act 2009 (Cth).

3.    The fifth respondent pay a total penalty of $50,000 for its two contraventions of s 343 of the Fair Work Act 2009 (Cth).

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

REASONS FOR JUDGMENT

REEVES J:

1    In August 2018, I delivered my judgment in relation to the liability aspects of this matter: Australian Building and Construction Commissioner v Ravbar [2018] FCA 1196 (the liability judgment). On 17 August 2018, I made orders consistent with the findings recorded in my reasons for judgment which relevantly included the following:

7.    [Ravbar] contravened section 340 of the Fair Work Act 2009 (Cth) (FW Act) by, in or about October 2012, taking adverse action against Universal Cranes Pty Ltd (Universal Cranes) by directing organisers employed by [Construction, Forestry, Mining and Energy Union (CFMEU) to follow the Universal Cranes cranes from the Universal Cranes yard to see where they were going, and to stop them from operating when they arrived at their destination (the Ravbar Direction), such action being taken:

(a)    because Universal Cranes had made an enterprise agreement directly with Universal Cranes’ employees on terms that were different to the terms of an enterprise agreement acceptable to the CFMEU (CFMEU pattern agreement);

(b)    because Universal Cranes had not, or was not, seeking to enter into a CFMEU pattern agreement with Universal Cranes’ employees;

(c)    to force Universal Cranes to seek to enter into a CFMEU pattern agreement with Universal Cranes’ employees.

8.     [Ravbar] contravened section 343 of the FW Act by giving the Ravbar Direction with the intent to coerce Universal Cranes to initiate or participate in a process or proceedings under the FW Act, namely to make a CFMEU pattern agreement.

9.    [Ravbar] contravened section 354 of the FW Act by discriminating against Universal Cranes by giving the Ravbar Direction because:

(a)    Universal Cranes’ employees were not covered by a CFMEU pattern agreement;

(b)    Universal Cranes proposed that Universal Cranes’ employees would not be covered by a CFMEU pattern agreement.

10.     [Sutherland] contravened section 340 of the FW Act by, in or about October 2012, taking adverse action against Universal Cranes by parking behind a Universal Cranes crane and blocking it from operating at the Port Connect Project (the Sutherland Conduct), such action being taken:

(a)    because Universal Cranes had made an enterprise agreement directly with Universal Cranes’ employees on terms that were different to the terms of the CFMEU pattern agreement;

(b)    because Universal Cranes had not, or was not, seeking to enter into a CFMEU pattern agreement with Universal Cranes’ employees;

(c)    to force Universal Cranes to seek to enter into a CFMEU pattern agreement with Universal Cranes’ employees.

11.     [Sutherland] contravened section 343 of the FW Act by engaging in the Sutherland Conduct with an intent to coerce Universal Cranes to initiate or participate in a process or proceedings under the FW Act, namely to make a CFMEU pattern agreement.

12.    [Sutherland] contravened section 354 of the FW Act by discriminating against Universal Cranes by engaging in the Sutherland Conduct because:

(a)    Universal Cranes’ employees were not covered by a CFMEU pattern agreement;

(b)    Universal Cranes proposed that Universal Cranes’ employees would not be covered by a CFMEU pattern agreement.

13.     By reason of section 793 of the FW Act [CFMEU] is liable for the conduct of [Ravbar] and contravened section 340 of the FW Act by giving the Ravbar Direction, such action being taken:

(a)    because Universal Cranes had made an enterprise agreement directly with Universal Cranes’ employees on terms that were different to the terms of an enterprise agreement acceptable to the CFMEU (CFMEU pattern agreement);

(b)    because Universal Cranes had not, or was not, seeking to enter into a CFMEU pattern agreement with Universal Cranes’ employees;

(c)    to force Universal Cranes to seek to enter into a CFMEU pattern agreement with Universal Cranes’ employees.

14.     By reason of section 793 of the FW Act [CFMEU] is liable for the conduct of [Ravbar] and contravened section 343 of the FW Act by giving the Ravbar Direction with the intent to coerce Universal Cranes to initiate or participate in a process or proceedings under the FW Act, namely to make a CFMEU pattern agreement.

15.    By reason of section 793 of the FW Act [CFMEU] is liable for the conduct of the first respondent and contravened section 354 of the FW Act by discriminating against Universal Cranes by giving the Ravbar Direction because:

(a)    Universal Cranes’ employees were not covered by the CFMEU pattern agreement;

(b)    Universal Cranes proposed that Universal Cranes’ employees would not be covered by a CFMEU pattern agreement.

16.     By reason of section 793 of the FW Act [CFMEU] is liable for the conduct of [Sutherland] and contravened section 340 of the FW Act by, by (sic) engaging in the Sutherland Conduct, such action being taken:

(a)    because Universal Cranes had made an enterprise agreement directly with Universal Cranes’ employees on terms that were different to the terms of the CFMEU pattern agreement;

(b)    because Universal Cranes had not, or was not, seeking to enter into a CFMEU pattern agreement with Universal Cranes’ employees;

(c)    to force Universal Cranes to seek to enter into a CFMEU pattern agreement with Universal Cranes’ employees.

17.    By reason of section 793 of the FW Act [CFMEU] is liable for the conduct of [Sutherland] and contravened section 343 of the FW Act by engaging in the Sutherland Conduct with an intent to coerce Universal Cranes to initiate or participate in a process or proceedings under the FW Act, namely to make a CFMEU pattern agreement.    

18.    By reason of section 793 of the FW Act [CFMEU] is liable for the conduct of [Sutherland] and contravened section 354 of the FW Act by discriminating against Universal Cranes by engaging in the Sutherland Conduct because:

(a)    Universal Cranes’ employees were not covered by a CFMEU pattern agreement;

(b)    Universal Cranes proposed that Universal Cranes’ employees would not be covered by a CFMEU pattern agreement.

2    These reasons concern the penalties to be imposed for the above described contraventions.

THE FACTUAL BACKGROUND

3    The details of the two individual respondents involved in the contraventions, Mr Ravbar and Mr Sutherland, were conveniently summarised in the Commissioner’s penalty submissions as follows:

Mr Ravbar

4.    At the relevant time, Mr Ravbar was the Divisional State Secretary for the CFMMEU for Queensland and the Northern Territory. He has held this role for over 11 years and continues to hold this role.

5.     Mr Ravbar oversees the finance, the administration and the governance of the CFMMEU. He is also a member of a number of boards which govern industry funds.

6.    By virtue of this role, Mr Ravbar is the most senior official within the Construction and General Division of the CFMMEU in Queensland and the Northern Territory and exercises considerable power and authority over the conduct of others within the Divisional Branch, including directing organisers to undertake certain activities on behalf of the union.

7.     Mr Ravbar is also currently the National Vice President of the CFMMEU and is on the National Executive Committee of the CFMMEU.

Mr Sutherland

8.     At the relevant time Mr Sutherland held the role of union organiser. Organisers in Brisbane are responsible for a geographic area as well as an industry sector. On a day-to-day basis, organisers receive instructions from the coordinators responsible for their area. This role includes negotiating enterprise agreements with subcontractors that are operating on sites for which the organiser is responsible.

9.    In 2013 Mr Sutherland was appointed as crane coordinator.

10.    He has since been promoted to hold a number of senior positions including, National Divisional Assistant Secretary of the Construction and General Division of the CFMMEU, Divisional Branch Assistant Secretary of the Queensland and Northern Territory Branch of the CFMMEU and is a member of the National Executive of the CFMMEU.

11.    The CFMMEU is a registered organisation under the FW Act of substantial size, resources and influence that relevantly operates in the building and construction industry. As at 31 March 2018, the Construction and General Division of the CFMMEU had 65,531 financial members across Australia.

(Footnotes omitted)

4    The details of the third Port Connect incident to which these contraventions relate were also conveniently summarised in the Commissioner’s penalty submissions as follows:

14.    In 2012 there were negotiations between Universal Cranes and the CFMMEU in relation to an enterprise agreement … [A]s an abstract proposition there was a general desire on the part of three senior officials, Mr Close (then the Assistant Divisional Branch Secretary for Queensland and the Northern Territory), Mr Ingham and Mr Ravbar to have Universal Cranes enter into a CFMMEU model agreement.

15.    From mid-August 2012 the central focus of those negotiations shifted from Universal Cranes joining the BERT Fund to other contentious provisions of the CFMMEU model agreement and such negotiations from that point onwards were decidedly tense. As a result of the continued refusal by Universal Cranes to enter into a CFMMEU model agreement, the union became frustrated with what it regarded as Mr Smith’s intransigence in not accepting these contentious provisions. It is in this context that the contraventions as found … occurred.

16.    Universal Cranes became a specific topic of discussion at organiser’s meetings held by the CFMMEU in the context of Universal Cranes’ refusal to enter into a CFMMEU model agreement. At one such meeting, organisers, including Mr Cradden and Mr Sutherland, were told to go to the Universal Cranes yard the next morning, follow the cranes as they left and stop them from working once they arrived at their destinations. This direction was given by Mr Ravbar and the motivation and purpose of giving such direction was to put pressure on Universal Cranes to force it to enter into a CFMMEU model agreement.

17.    As a result of Mr Ravbar’s direction, at least six CFMMEU officials including Mr Cradden and Mr Sutherland gathered at a café in the vicinity of the Universal Cranes yard the next morning. Mr Cradden and Mr Sutherland and others then followed a franna crane to the Port Connect Project located on the Gateway Motorway.

18.    Upon arrival at the Port Connect Project, Mr Cradden and Mr Sutherland parked their cars in a way which blocked in the Universal Cranes franna crane. At least five CFMMEU officials were present at the project in a total of four vehicles. Their presence drew the attention of Mr Zoller, the construction manager who attended at the site and spoke with Mr Cradden. Mr Zoller was advised that the union officials were there to stop the crane from working. As a result of the action of the officials, Mr Zoller sent the franna crane back to the Universal Cranes yard. The union officials then left the site. The actions of Mr Sutherland and other officials prevented the franna crane from operating that day and subsequently Universal Cranes did not perform any more franna crane work on the site during the day.

19.    Mr Sutherland had no legitimate entitlement to enter the Port Connect site that day and had no legitimate entitlement to block the use of the Universal Cranes franna crane. Similarly, Mr Ravbar had no legitimate entitlement to direct Mr Sutherland to take that action.

20.    The separate actions of Mr Ravbar and Mr Sutherland were committed in order to apply illegitimate pressure to Universal Cranes so as to force it to enter into a CFMMEU model agreement by interrupting and preventing the performance of work by Universal Cranes.

(Footnotes omitted)

THE ISSUES

5    For the purposes of this penalty judgment, it should first be noted that the parties have agreed on the following matters:

(a)    that the maximum penalty that may be imposed for the contraventions by Mr Ravbar and Mr Sutherland is $6,600;

(b)    that the maximum penalty that may be imposed for each of the contraventions by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), the fifth respondent, is $33,000; and

(c)    that under s 556 of the Fair Work Act 2009 (Cth) (the FWA), each of the respondents may only be ordered to pay one penalty in relation to particular conduct, notwithstanding that the conduct contravened each of ss 340, 343 and 354 of the FWA.

6    The Commissioner nominated s 343 as the provision with respect to which the sole penalty mentioned above should be imposed on each of the three respondents and none of them opposed that approach.

7    As for the issues that were in dispute, at the conclusion of written and oral submissions, the following were identified:

(a)    whether two penalties or two penalties with a notional maximum of one should be imposed on the CFMMEU for each of its contraventions of s 343 based on the conduct of both Mr Ravbar and Mr Sutherland;

(b)    in assessing an appropriate penalty, how the CFMMEU’s history of contraventions should be taken into account;

(c)    what factors should be taken into account when assessing the objective seriousness, or gravity, of the respondents’ contravening conduct; and

(d)    the appropriate penalties to be imposed on each of Mr Ravbar, Mr Sutherland and the CFMMEU.

THE RELEVANT LEGISLATIVE PROVISIONS AND PRINCIPLES

8    Section 343 provides:

(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.

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

(2)    Subsection (1) does not apply to protected industrial action.

9    Section 546(1) of the FWA confers a broad discretion on the Court to impose pecuniary penalties for contraventions of a civil remedy provision such as s 343 above. That discretion must, of course, be exercised judicially and not arbitrarily. Section 546(2) prescribes how maximum civil remedy penalties are to be calculated as follows:

Determining amount of pecuniary penalty

(2)    The pecuniary penalty must not be more than:

(a)    if the person is an individual—the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); or

(b)    if the person is a body corporate—5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2).

10    As has already been recorded above, the parties have agreed on the maximum penalties this Court may impose on the respondents under the above provisions. These maximum penalties are an important factor to be taken into account in assessing the appropriate penalty to be imposed on the three respondents (see Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31] per Gleeson CJ, Gummow, Hayne and Callinan JJ) and the recent Full Court decision in Parker v Australian Building and Construction Commissioner [2019] FCAFC 56 (Parker) at [342].

11    The primary, if not only, object of a civil remedy penalty under the FWA is deterrence (see Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46 (Commonwealth v Inspectorate) where the High Court adopted (at [55]) the observations of French J in Trade Practices Commission v CSR Limited (1991) ATPR ¶41-076 at 52,152. Among other things, deterrence requires the Court to fix a penalty which is not “regarded by [the] offender or others as an acceptable cost of doing business” (see Construction, Forestry, Mining and Energy Union v Decmil Engineering Pty Ltd (No 2) [2017] FCA 1237 at [38] and the cases cited there). Otherwise the principles bearing on the assessment of an appropriate penalty under the FWA are well settled. A relatively recent example is Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 353 where Tracey J conveniently summarised those principles at [66]–[73]. I have had regard to these principles in assessing the appropriate penalty in this matter.

CONSIDERATION

12    I turn now to consider, in turn, the four issues set out above.

(a)    The number of contraventions

13    On this first issue, relying on the Full Court decision in Construction, Forestry, Mining and Energy Union v Williams (2009) 262 ALR 417; [2009] FCAFC 171, the CFMMEU contended that the conduct of its human agents, Mr Ravbar and Mr Sutherland, which was attributed to the CFMMEU under s 793, was so closely interconnected in time, place and purpose that it should be regarded as forming part of the same transaction, or course of conduct, such that whilst separate penalties should be imposed on the CFMMEU, the notional maximum of those should equate to that of one penalty. In response, the Commissioner contended that their conduct was sufficiently disparate to justify two penalties being imposed.

14    The authorities relating to the course of conduct principle are discussed at length in Parker at [267]–[288]. As that discussion discloses, the critical question is whether the contraventions concerned involved common legal and factual elements reflecting the same criminality or, in this context, wrongdoing. As is already mentioned above, the two contraventions central to this issue were founded on the conduct of Mr Ravbar and Mr Sutherland that was attributed to the CFMMEU under s 793 of the FWA. This is important because it is apparent from the declarations made with respect to the contraventions associated with the third Port Connect incident (see at [1] above) that the CFMMEU’s contravention involving Mr Ravbar related to him giving the “Ravbar Direction” (see at [1(14)] above) and the contravention involving Mr Sutherland related to “the Sutherland Conduct” (see at [1(17)] above). The former expression is defined in the orders to mean “in or about October 2012 … directing organisers employed by [the CFMMEU] to follow the Universal Cranes cranes from the Universal Cranes yard to see where they were going, and to stop them from operating when they arrived at their destination” (see at [1(7)] above). As the liability judgment shows, this direction was given at an organiser’s meeting held at the CFMMEU offices in Bowen Hills, Brisbane on the day before the third Port Connect incident. It therefore involved a direction to act rather than the action itself.

15    In contrast, the latter expression is defined in the orders to mean “parking behind a Universal Cranes crane and blocking it from operating at the Port Connect Project” (see at [1(10)] above). Again, as the liability judgment shows, this event occurred at the Port Connect project site which was located near the Gateway Motorway in Brisbane some distance away from the CFMMEU’s offices. Furthermore, this conduct concerned direct action to prevent the Universal Cranes crane from working on that site.

16    Accordingly, while these two pieces of conduct had the same ultimate purpose, that is, to coerce Universal Cranes to enter into an enterprise agreement with the CFMMEU, they constituted separate contraventions of s 343, each founded on conduct that was distinct and separate in time, place and character. That being so, they could not be said to be a part of a common course of conduct, or the same wrongdoing. It follows that two penalties should be imposed on the CFMMEU, one for each of its contraventions of s 343.

(b)    Allowing for specific deterrence

17    The competing considerations emphasised by the parties on this issue are best illustrated by quoting from the judgment of King CJ in The Queen v McInerney (1986) 42 SASR 111 at 113 to which the CFMMEU referred in its submissions:

… The cardinal rule is that while good character may operate to reduce the sentence which the facts of the crime would otherwise attract, bad character cannot increase it. A person is not to be punished, or punished again, for crimes other than the crime for which sentence is being passed. Offences committed prior to sentence for the offence under consideration may affect the sentence in two ways. They may diminish or abrogate any leniency by reason of good character. They may, moreover, lead to a greater sentence than would otherwise be imposed, although within the proper limits indicated by the facts of the immediate crime, for the purpose of personal deterrence; the prisoner’s record may indicate that greater punishment is needed to protect the public by deterring him from further crime …

(Emphasis added)

18    Consistent with the High Court judgment in Commonwealth v Inspectorate, the Commissioner emphasised the latter, namely the importance of, and need for, an element of specific deterrence to be reflected in the penalties, particularly having regard to the CFMMEU’s history as a recidivist. The Commissioner also placed particular reliance on the Full Court judgment in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC 113 at [159]. For its part, the CFMMEU emphasised the former, namely the need for caution when applying deterrence to avoid punishing an offender twice for the same offence. It relied on the High Court judgment in Veen v The Queen (No 2) (1988) 164 CLR 465 and the judgment of Bromwich J in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126 at [107].

19    The principles bearing on the balance that has to be struck between these competing considerations were discussed most recently in Parker. At [341], the Court summarised the position as follows:

Thus, the role of any past contraventions is to be no more than a prism through which to view the instant contravention. This enables a court to assess whether, for example, the instant contravention is an “uncharacteristic aberration”, or whether the contravener has, by the instant conduct, manifested “a continuing attitude of disobedience of the law”. If the latter, as is clearly available to be concluded in this case, the heightened need for deterrence may indicate that a more severe penalty is warranted for the instant contravention. Nonetheless, that penalty must still fall within the applicable range that is otherwise considered appropriate for that contravention. If that is not carefully observed, the contravener may suffer the fate of being sanctioned anew for past contraventions, as the above quote from Veen (No 2) makes clear is not permitted.

(Emphasis added)

20    I will bear these competing principles in mind when I come to consider the final issue below, namely the quantification of the appropriate penalties.

(c)    The objective seriousness of the contraventions

21    There was no dispute between the parties that the objective seriousness of the contraventions is a critical factor when assessing the appropriate penalties to be applied. Accordingly, in submissions, each party provided a list of factors which they claimed affected that assessment. It should be noted that there is some overlap in these lists between the factors affecting objective seriousness and those affecting deterrence. The Commissioner’s list was:

(a)    “[t]he contraventions were objectively serious” and “involved the calculated targeting of a business because it would not comply with the CFMMEU’s demands regarding an enterprise agreement”;

(b)    “[t]he contraventions were deliberate and not accidental”. Specifically, the CFMMEU and its officials observed the departure of cranes and blocked them upon their arrival from performing work;

(c)    the respondents could have used lawful means to achieve their desired outcome but instead used methods of coercion;

(d)    the respondents have not shown contrition and denied the contraventions;

(e)    “Mr Ravbar and Mr Sutherland were officials within the CFMMEU” with Mr Ravbar holding “the senior position of Divisional State Secretary for Queensland and the Northern Territory”: a position of this nature should carry “a responsibility for industrial compliance that is above that of the ordinary citizen as well as other officials within the [CFMMEU]” and “heightens the need for deterrence”;

(f)    there is no evidence that Mr Ravbar or Mr Sutherland have resigned, indicating that the need for specific deterrence is high;

(g)    the CFMMEU “is a large and well-established registered organisation”, remains “active in the industrial sphere” and has an “extensive record of non-compliance with industrial law”: these are all factors which indicate “that the need for specific deterrence is high”; and

(h)    during Mr Ravbar’s time in his position as Divisional State Secretary for Queensland and the Northern Territory there have been a number of contraventions within that division, resulting in “more than $3.4 million in penalties being imposed by Courts”.

22    On the other hand, the CFMMEU’s list of factors was:

(a)    while it accepted the conduct giving rise to the contraventions was serious and that senior management of the CFMMEU were involved, it was not of the gravest possible kind;

(b)    “the conduct affected one crane belonging to Universal Cranes at one project for one day”, “Universal Cranes was not affected in respect of any of the other sites at which it operated”, “the conduct was not repeated after the day in question” and there was “no evidence that … progress … [was] delayed”;

(c)    Mr Ravbar had one prior contravention from 2002;

(d)    there is no basis on which CFMMEU’s contraventions during the time Mr Ravbar held his position as Divisional State Secretary for Queensland and the Northern Territory should be attributed to him as “[n]one of those matters involved any allegations or findings to the effect that he had directed, required or permitted the contravening conduct in question”;

(e)    Mr Sutherland had no prior contraventions but has three contraventions related to conduct which occurred after the events which were the subject of this proceeding;

(f)    “[a]ny lack of contrition is not an aggravating circumstance that might increase the penalty” (see BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336 at [10]; Cahill v Construction, Forestry, Mining and Energy Union (No 4) (2009) 189 IR 304; [2009] FCA 1040 at [87] and Director of the Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432 at [87]);

(g)    Mr Ravbar and Mr Sutherland “are natural persons who contravened in the course of their employment” and the CFMMEU “does not seek a mitigation of the penalty by virtue of its size or financial positon”;

(h)    “[d]eterrence must not lead to a penalty that is beyond the bounds of proportionality”; and

(i)    “there was some limited evidence as to loss” which was “confined to Universal Cranes switching … to night work at the Port Connect Project” and “the Court should not assume any loss was significant”.

23    Having regard to these lists of factors, I consider the parties are correct to describe these contraventions as serious, but I do not accept the Commissioner’s contention that they are of the gravest possible kind. Instead, I consider they fall into the moderate range of seriousness. In reaching this conclusion, I have had particular regard to the fact that the conduct was deliberate and pre-planned and that it involved a large number of CFMMEU organisers acting in concert. Furthermore, while there is no evidence of actual loss having been sustained by Universal Cranes, I agree with the observations of Barker J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 798 at [68] and therefore consider I can infer that Universal Cranes must have suffered some loss or disadvantage by not being able to use the crane on the Port Connect Project site for a period of approximately six weeks after the incident. I have also had regard to the matters highlighted by the CFMMEU, including the fact that the incident itself was over quickly, that it was not repeated and that it was isolated in the sense that it affected only one construction site on the morning of one day. I also accept the CFMMEU’s contention that any lack of contrition should not be taken into account as aggravating the seriousness of the contraventions.

(d)    The appropriate penalties

24    Finally, I turn to the central purpose of this penalty judgment: the appropriate penalties to be imposed on the respondents for their contraventions of the FWA. The Commissioner submitted that, in light of factors such as: “the deliberate and highly organised nature of the conduct”; its seriousness; the involvement of the most senior official within the Queensland/Northern Territory branch of the CFMMEU; the lack of remorse; Mr Ravbar’s denials of his conduct; and the CFMMEU’s previous contravention history, two maximum penalties of $33,000 should be imposed on the CFMMEU resulting in a total penalty of $66,000. As for Mr Ravbar and Mr Sutherland, without nominating a monetary figure, the Commissioner contended that their conduct was “within the worst category of contravention[s]” and so “very high penalties” should be imposed on them to reflect specific and general deterrence.

25    For its part, the CFMMEU emphasised the range of ameliorating factors set out above and submitted that the penalties should all be in the moderate range as follows:

(a)    for Mr Ravbar – between $3,000 and $4,000;

(b)    for Mr Sutherland – between $3,000 and $4,000; and

(c)    for the CFMMEU itself – two penalties of $15,000 each, giving an overall total of $30,000.

26    Having regard to the relevant principles and to the factors discussed above, I consider the following to be the appropriate penalties to be imposed in this matter:

(a)    Mr Ravbar – $5,000;

(b)    Mr Sutherland – $3,500; and

(c)    the CFMMEU – two penalties of $25,000, giving a total penalty of $50,000.

27    In assessing these penalties, I have had particular regard to the following matters

(a)    Mr Ravbar – that he was, at the time, the most senior officer of the CFMMEU in Queensland/Northern Territory and, on the other hand, since he personally has only one previous contravention which was committed more than 15 years ago, I have not treated his contravention as demonstrating a continuing defiance of the law such as to require some additional weighting in the penalty to reflect specific deterrence. To be specific, I have not taken account of the conduct of the Queensland Branch of the CFMMEU in fixing his penalty because, as noted above, I have separately had regard to that matter and also because I consider the CFMMEU must be treated as a separate legal person for the purposes of fixing these penalties;

(b)    Mr Sutherland – that he did not have the same level of seniority as Mr Ravbar in the CFMMEU and that he had no relevant previous contraventions and, therefore, did not attract some additional weighting in his penalty to reflect specific deterrence; and

(c)    the CFMMEU – that it is an identified recidivist and that it has, by its conduct, demonstrated a continuing defiance of the law. I have therefore included in its penalties a significant degree of specific and general deterrence as discussed above. I have, however, balanced this against the moderate seriousness of the contraventions and I have been alive to the need to avoid penalising it twice for the same offence. These considerations provided the main reasons why I have not imposed the maximum penalties sought by the Commissioner.

28    Finally, with respect to the CFMMEU, I have reflected upon whether the total penalty of $50,000 to be imposed on it should be reduced, having regard to the seriousness of its contraventions and to considerations of totality and proportionality. Having done so, I see no reason to make any such reduction.

CONCLUSION

29    For these reasons, I will order that:

1.    Mr Ravbar pay a penalty of $5,000 for his contravention of s 343 of the Fair Work Act 2009 (Cth).

2.    Mr Sutherland pay a penalty of $3,500 for his contravention of s 343 of the Fair Work Act 2009 (Cth).

3.    The Construction, Forestry, Maritime, Mining and Energy Union pay a total penalty of $50,000 for its two contraventions of s 343 of the Fair Work Act 2009 (Cth).

Associate:    

Dated:    15 April 2019

SCHEDULE OF PARTIES