FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Hassett [2019] FCA 855

ORDERS

THE COURT DECLARES THAT:

1.    The First Respondent contravened section 499 of the Fair Work Act 2009 (Cth) (the FW Act) on 5 June 2017 at the Living City Civic Hub Project at 17 Fenton Way, Devonport (the Site) by failing to comply with a reasonable request by Fairbrother Pty Limited (Fairbrother), the Site occupier, to comply with an occupational health and safety requirement that applied to the Site.

2.    The First Respondent contravened section 500 of the FW Act on 5 June 2017 at the Site by acting in an improper manner while exercising, or seeking to exercise, rights in accordance with Part 3-4 of the FW Act, by a) climbing on the crane while it was in operation; b) ignoring Fairbrother’s reasonable requests to get off the crane; and c) using insulting language and engaging in abusive behaviour.

3.    The First Respondent contravened section 500 of the FW Act on 6 June 2017 at the Site by acting in an improper manner while exercising, or seeking to exercise, rights in accordance with Part 3-4 of the FW Act, by climbing on the crane while it was in operation causing crane work to stop.

4.    By reason of sections 793 and 550 of the FW Act, the Third Respondent contravened section 499 of the FW Act by the conduct of the First Respondent constituting the contravention the subject of the first declaration.

5.    By reason of sections 793 and 550 of the FW Act, the Third Respondent contravened section 500 of the FW Act by the conduct of the First Respondent constituting the contravention the subject of the second declaration.

6.    By reason of sections 793 and 550 of the FW Act, the Third Respondent contravened section 500 of the FW Act by the conduct of the First Respondent constituting the contravention the subject of the third declaration.

THE COURT ORDERS THAT:

7.    The First Respondent pay to the Commonwealth of Australia a penalty of $8,000 in respect of his contravention of section 499 on 5 June 2017.

8.    The First Respondent pay to the Commonwealth of Australia a penalty of $8,000 in respect of his contravention of section 500 on 5 June 2017.

9.    The First Respondent pay to the Commonwealth of Australia a penalty of $6,000 in respect of his contravention of section 500 on 6 June 2017.

10.    The Third Respondent pay to the Commonwealth of Australia a penalty of $40,000 in respect of its contravention of section 499 on 5 June 2017.

11.    The Third Respondent pay to the Commonwealth of Australia a penalty of $40,000 in respect of its contravention of section 500 on 5 June 2017.

12.    The Third Respondent pay to the Commonwealth of Australia a penalty of $35,000 in respect of its contravention of section 500 on 6 June 2017.

13.    The pecuniary penalties referred to in orders 7 to 12 above be paid to the Commonwealth of Australia within 28 days of these orders being made by the Court.

14.    There be no order as to costs.

15.    The proceeding otherwise be dismissed.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1    By an Amended Originating Application dated 23 November 2018, the applicant seeks declarations of contraventions of ss 499 and 500 of the Fair Work Act 2009 (Cth) (the FW Act) by the first respondent (Mr Hassett) and the third respondent (the CFMMEU) and the imposition of pecuniary penalties on them in relation to these contraventions. No declaration or penalty was ultimately sought in respect of the second respondent (Mr Harkins).

2    By an Amended Defence filed on 7 December 2018 in response to an Amended Statement of Claim dated 23 November 2018, Mr Hassett and the CFMMEU have made admissions of the following contraventions of ss 499 and 500 of the FW Act, as follows:

(a)    on 5 June 2017 at 17 Fenton Way, Devonport (the Site), Mr Hassett contravened s 499 of the FW Act by failing to comply with a reasonable request by the Site occupier to follow an occupational health and safety requirement that applied to the Site while exercising a State or Territory right;

(b)    on 5 June 2017 at the Site, Mr Hassett contravened s 500 of the FW Act by acting in an improper manner while exercising, or seeking to exercise, rights in accordance with Part 3-4 of the FW Act;

(c)    on 6 June 2017 at the Site, Mr Hassett contravened s 500 of the FW Act by acting in an improper manner while exercising, or seeking to exercise, rights in accordance with Part 3-4 of the FW Act; and

(d)    the CFMMEU contravened ss 499 and 500 of the FW Act in relation to Mr Hassett’s contraventions of those provisions by reason of ss 550 and 793 of the FW Act.

3    In light of these admissions, the applicant said that it would not press other pleaded contraventions of the FW Act.

4    It is necessary now to deal with the applicant’s claims for final relief, including for penalties. The applicant submits that the court should:

(a)    make declarations in relation to the contraventions of ss 499 and 500 of the FW Act by each of Mr Hassett and the CFMMEU;

(b)    impose appropriate pecuniary penalties on Mr Hassett (in the high range) and the CFMMEU (in the very high range approaching the maximum) for their contraventions of the FW Act;

(c)    order that those penalties be paid to the Commonwealth of Australia within 28 days;

(d)    otherwise dismiss the application; and

(e)    make no order as to costs.

5    The respondents take issue only in the following respects. First, they say that the pecuniary penalties to be imposed should be at a level, in respect of the 5 June contraventions, “at the middle of the range” and, in respect of the 6 June contraventions, at a level “below the middle of the range”. Secondly, they contend that s 556 of the FW Act applies in relation to the contraventions of ss 499 and 500 on 5 June 2017, meaning that only a single penalty can be imposed on the respondents in relation to those contraventions, or, alternatively, that the “course of conduct” principle applies in relation to the 5 June 2017 contraventions and the imposition of penalties should be approached on the basis that the maximum penalty for both combined is that applicable for a single contravention.

6    The applicant also contended that there is a division of opinion in recent decisions of the court about the correct approach to assessing penalties in light of a respondent’s history of contraventions, and that I should follow one of these supposedly divergent lines of authority. I will return to that contention later, and explain why, in my view, no such issue arises.

Penalties applicable

7    The maximum penalty for each contravention is set out in s 546(2) of the FW Act and is 60 penalty units for Mr Hassett, and 300 penalty units for the CFMMEU. A “penalty unit” is defined in s 4AA of the Crimes Act 1914 (Cth). At the time that the contravening conduct occurred, the value of a penalty unit was $180. Accordingly, the maximum penalty that may be imposed for each contravention by Mr Hassett is $10,800 and the maximum penalty that may be imposed for each contravention by the CFMMEU is $54,000.

Relevant provisions

8    It is convenient to set out here the relevant provisions of the FW Act.

9    Section 499 provides:

A permit holder must not exercise a State or Territory OHS right unless he or she complies with any reasonable request by the occupier of the premises to comply with an occupational health and safety requirement that applies to the premises.

10    Section 500 provides:

A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

11    Section 556 provides:

If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct.

The facts

12    The description of the events admitted to have occurred is limited to the admissions made by the respondents to the applicant’s pleaded case.

5 June 2017

13    Mr Hassett attended the Site on 5 June 2017 to investigate suspected contraventions of the Work Health and Safety Act 2012 (Tas). When asked for his “notice” by site management, he respondend by giving the “middle finger” and saying “get fucked, that will never happen”. Mr Hassett then climbed on to a crane while it was in operation and had a conversation with the crane operator about wages. He also asked if one of the workers working with the crane operator was appropriately qualified. He then refused to get off the crane despite repeated requests from Site management, which included a warning that it was unsafe to be on the crane. There was also a sign on the crane prohibiting unauthorised interruption of the operator during crane operation. Mr Hassett’s actions resulted in the disruption of work on 5 June 2017 for 20 minutes.

14    The Amended Statement of Claim pleads and particularises the alleged breaches of s 499 as follows:

Hassett’s contravention of s.499 of the FW Act on 5 June 2017

25.    While Hassett was on the Site on 5 June 2017, Fairbrother [Pty Ltd] [the site occupier] made a reasonable request of Hassett to get off the crane (which was being operated at the time) by reason of the fact that it was unsafe to be on the crane while it was being operated (the 5 June OHS Request).

Particulars

(a)    The 5 June OHS Request consisted of the statements made by Schrammeyer for Hassett to get off the crane. The Applicant refers to paragraph 15 above.

(b)    The 5 June OHS Request was reasonable because:

i.    cranes, particularly during their operation, are potentially dangerous when alighted not in accordance with proper safety procedures;

ii.    interrupting the crane operator during operation prevents the operator from following the directions of their dogman, which poses a serious risk to health and safety;

iii.    it was consistent with the operating instructions for the crane, which require “no unauthorized people in the vicinity of or on the truck crane when rigging or during crane work”. A copy of the operating instructions is available for inspection by prior appointment at the offices of the solicitors for the Applicant;

iv.    it was consistent with the Crane Sign; and

v.    it was not unduly burdensome and easily complied with.

26.    The 5 June OHS Request was an occupational health and safety requirement for the purposes of section 499 of the FW Act.

27.    Hassett failed to comply with the 5 June OHS Request.

Particulars

The Applicant refers to paragraph 15 above.

28.    By reason of the above, Hassett contravened section 499 of the FW Act.

15    The cross-referenced [15], referred to in the particulars to [25] and [28], is as follows:

15.    While speaking to Woodcock as described above, Hassett called out to Schrammeyer, who was standing nearby the crane, and had a conversation with words to the effect as follows:

(a)    Hassett said “Is the rigger and dogman qualified?”;

(b)    Schrammeyer said “Get off the crane it’s unsafe”, which Hassett refused to do;

(c)    Hassett replied “You’ve got fucking people without a dogman’s ticket rigging loads, this is an OHS issue”; and

(d)    Schrammeyer asked Hassett again to get off the crane as it was unsafe, but Hassett refused to do this.

(the events described in paragraphs 14 to 15 above are referred to as Hassett’s 5 June Crane Conduct)

16    The Amended Statement of Claim pleads and particularises the alleged breaches of s 500 as follows:

Hassett’s contraventions of s.500 of the FW Act on 5 June 2017

29.    While on the Site on 5 June 2017, Hassett acted in an improper manner within the meaning of section 500 of the FW Act, by:

(a)    climbing on the crane while it was in operation;

(b)    ignoring the 5 June OHS Request; and

(c)    using insulting language and engaging in abusive behaviour.

30.    By reason of the above, Hassett contravened section 500 of the FW Act.

6 June 2017

17    On 6 June 2017 Mr Hassett again attended the Site pursuant to the Work Health and Safety Act 2012 (Tas). He again climbed on to a crane while it was in operation, and had a conversation with the crane operator. He refused to get off the crane for 5 minutes and so disrupted work for a second time in two days.

18    The pleaded case was as follows:

37.    At approximately 9:55am on 6 June 2017, Hassett and Harkins attended and entered the Site in exercise of the right of entry conferred by s 117 of the WHS Act.

38.    When entering the Site:

(a)    Hassett told Schrammeyer that they were there to follow up on “some items”; and

(b)    Schrammeyer said that he would show them around.

39.    Shortly after this, Hassett:

(a)    walked towards a Pfeiffers crane, which was being operated at the time by Shane Leslie (Leslie); and then

(b)    climbed the crane steps up to the crane cabin.

40.    While on the Pfeiffers crane, Hassett and Leslie had a conversation with words to the effect as follows:

(a)    Hassett said “I heard you’re on $35.00 an hour we are chasing Pfeiffers to sign an EBA”;

(b)    Hassett said that he had a folder in his car that he should have brought with him that has all the correct wages in it;

(c)    Leslie replied “You are speaking to the wrong person, get off my crane”;

(d)    Hassett refused to get off the crane and asked if there is a Pfeiffers crane in Launceston and what other Pfeiffers cranes are operating here and then said “We’re chasing up Pfeiffers as he walked out of a union meeting’’;

(e)    Leslie responded “You are talking to the wrong person here, I’m just about to do a lift and have to get back to work”.

(the events described in paragraphs 39 to 40 above, are referred to as “Hassett’s 6 June Crane Conduct”).

41.    During Hassett’s 6 June Crane Conduct, crane work stopped for approximately 5 minutes.

Particulars

Leslie was about to start a crane lift and had to stop working when he was approached by Hassett. A rigger and three other workers on the Site had to stop standing panels while the crane work was stopped. The Applicant otherwise refers to paragraph 40 above.

42.    While Hassett was on the crane:

(a)    [deleted]

(b)    Schrammeyer then said to Hassett words to the effect of “Hurry up mate you’re holding up these guys”; and

(c)    Hassett replied with words to the effect of “We’re talking safety”.

43.    After Hassett got off the crane, he asked Harkins if a secondary access had been done, to which Harkins replied that Saul had said it had been done, to which Hassett responded with words to the effect of “Well good because if Bernard [Schrammeyer] told you I wouldn’t believe him.”

44.     At all material times on 6 June 2017, the Crane Sign was on the Pfeiffers crane.

45.    Hassett and Harkins then left the Site and said they would be back in two weeks to check on the safety issues that had been identified.

46.    When entering the Site on 6 June 2017, Hassett:

(a)    was exercising, or seeking to exercise a State or Territory OHS right within the meaning of subsection 494(2) of the FW Act; and

(b)    was therefore exercising or seeking to exercise a right in accordance with Part 3-4 of the FW Act.

Particulars

(a)    In relation to exercising a State or Territory OHS right, Hassett was exercising his right to enter the Site pursuant to sections 117 and 118 of the WHS Act. Hassett’s purpose for entering and remaining on the Site can be inferred from his conduct and statements made on 5 June 2017 and 6 June 2017 and the proximity in time between the two entries to the Site. In this respect, the Applicant refers to paragraphs 8 to 23 and 37 to 45 above and the particulars thereunder.

(b)    In relation to exercising, or seeking to exercise, a right in accordance with Part 3-4 of the FW Act, Hassett was exercising his State or Territory OHS right pursuant to section 494 of the FW Act.

Hassett’s contraventions of s.500 of the FW Act on 6 June 2017

47.    While on the Site on 6 June 2017, Hassett acted in an improper manner within the meaning of section 500 of the FW Act.

Particulars

The Applicant refers to paragraphs 39 to 42 above.

48.    By reason of the above, Hassett contravened section 500 of the FW Act.

Declaratory relief

19    The applicant seeks the following declarations, which the respondents do not oppose:

1.    The First Respondent contravened section 499 of the Fair Work Act 2009 (Cth) (FW Act) on 5 June 2017 at the Living City Civic Hub Project at 17 Fenton Way, Devonport (the Site) by failing to comply with a reasonable request by Fairbrother Pty Limited (Fairbrother), the Site occupier, to comply with an occupational health and safety requirement that applied to the Site.

2.    The First Respondent contravened section 500 of the FW Act on 5 June 2017 at the Site by acting in an improper manner whilst exercising, or seeking to exercise, rights in accordance with Part 3-4 of the FW Act, by a) climbing on the crane while it was in operation; b) ignoring Fairbrother’s reasonable requests to get off the crane; and c) using insulting language and engaging in abusive behaviour.

3.    The First Respondent contravened section 500 of the FW Act on 6 June 2017 at the Site by acting in an improper manner whilst exercising, or seeking to exercise, rights in accordance with Part 3-4 of the FW Act, by climbing on the crane while it was in operation causing crane work to stop.

4.    By reason of sections 793 and 550 of the FW Act, the Third Respondent contravened section 499 of the FW Act by the conduct of the First Respondent constituting the contravention the subject of the first declaration.

5.    By reason of sections 793 and 550 of the FW Act, the Third Respondent contravened section 500 of the FW Act by the conduct of the First Respondent constituting the contravention the subject of the second declaration.

6.    By reason of sections 793 and 550 of the FW Act, the Third Respondent contravened section 500 of the FW Act by the conduct of the First Respondent constituting the contravention the subject of the third declaration.

The applicant’s submissions regarding pecuniary penalties

20    The applicant submits that “[b]y engaging in this contravening conduct, Mr Hassett flouted the benefits conferred on him as a federal permit holder and a State OHS permit holder; fell short of the standard reasonably expected of someone in his position; demonstrated a disregard for the site occupier and its occupational health and safety requirement (sic) and caused disruption to the operations on the Site”.

21    The applicant submits that each contravention by the CFMMEU is sufficiently grave as to warrant a penalty in the “very high range approaching the maximum”, because:

(a)    the contraventions were antithetical to the rights of entry regime, and caused illegitimate disruption to the operations of the Site on two occasions;

(b)    the conduct was deliberate and without justification;

(c)    the conduct involved a flagrant refusal to comply with a reasonable OHS requirement in circumstances where Mr Hassett himself was investigating possible OHS contraventions;

(d)    the respondents have not demonstrated contrition or proposed corrective action;

(e)    Mr Hassett is a recidivist offender who has had penalties imposed on him in relation to four separate contraventions of s 500 of the FW Act in the Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Parliament Square Case) [2018] FCA 1080 (Tracey J) (relating to a failure to provide notice of his entries, and unnecessary and gratuitous abuse towards site management) and another in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Brooker Highway Case) [2018] FCA 1081 (Tracey J) (relating to a failure to provide notice of entry and use of foul and abusive language towards management);

(f)    the CFMMEU is a recidivist offender;

(g)    unless penalties are sufficiently high they will not have the required deterrent impact, and risk being regarded as an acceptable cost of doing business; and

(h)    the CFMMEU is large, asset rich, and well-resourced, such that a small penalty risks being ineffective as a deterrent.

22    The applicant further submits that each of Mr Hassett’s contraventions warrants a penalty in the high range having regard to the above factors, because:

(a)    the considerations in [22](a) to (d) above apply with equal force;

(b)    general deterrence for union officials in Mr Hassett’s position is required; and

(c)    specific deterrence is required for Mr Hassett, particularly in circumstances where he engaged in this conduct contrary to his obligations as a permit holder, despite the commencement of the Parliament Square Case proceeding.

23    The propositions that Mr Hassett and the CFMMEU are recidivist offenders, that the CFMMEU is a large, asset rich, and well-resourced union and that the CFMMEU’s record of contraventions “demonstrates an ongoing disregard for industrial legislation and a calculated indifference to contravening conduct” were not disputed. (As to the last point see, by way of example, Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213 at [62] (Tracey J); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Webb Dock Case) [2017] FCA 62 at [65] (Jessup J); Australian Building and Construction Commissioner v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (The Australian Paper Case) (No 2) [2017] FCA 367 at [31] (Jessup J); and Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97; (2018) 280 IR 28 at [23] (Allsop CJ, White and O’Callaghan JJ).

24    The proposition that Mr Hassett’s conduct was deliberate and without justification was not challenged, nor could it be, when, as the applicant submitted:

(a)    he was advised during the events of 5 June 2017 by site management to get off the crane because it was unsafe;

(b)    there was a sign on the crane warning: “No unauthorised interruption of operator during crane operation”;

(c)    he was an experienced CFMMEU official with prior contraventions of s 500 of the FW Act; and

(d)    he was the holder of a State OHS permit and a federal permit, meaning that he must have been taken to be aware of his obligations as a holder of those permits.

25    The applicant also submitted, and the respondents did not dispute, that general and specific deterrence must play a primary role in assessing the appropriate penalty.

26    The applicant submits, in respect of the CFMMEU, that specific deterrence is of particular importance because its non-compliance with the provisions of the FW Act is “institutionalised”. The applicant submits that penalties will serve as a deterrent only if they are fixed at a meaningful level. The applicant says that “[t]he Court’s repeated criticism of the CFMMEU’s history of offending and its general approach to unlawful behaviour has not altered the CFMMEU’s approach.” Nor, it submits, “have the associated penalty orders, including in recent times significant pecuniary penalties including near maximum penalties, curbed the CFMMEU’s ongoing non-compliance with provisions of the FW Act”, citing Draffin v Construction, Forestry, Mining and Energy Union [2009] FCAFC 120; (2009) 189 IR 145 at [89] (Goldberg, Jacobson and Tracey JJ); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 1269 at [46] (Reeves J); and Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Quest Apartments Case) (No 2) [2017] FCA 163; (2018) 358 ALR 725 at 727, [17] and 738, [76] (Tracey J).

27    With respect to Mr Hassett, the applicant submits that both general and specific deterrence have a significant role to play in any penalties imposed by the court and that any penalties imposed on him must be sufficiently high that they:

(a)    act as a general deterrent to other CFMMEU officers exercising rights of entry; and

(b)    act as a specific deterrent to Mr Hassett from engaging in further contravening conduct, given that Mr Hassett is still employed by the CFMMEU as an organiser (and has previously been found to have contravened the FW Act).

28    On the question of whether any loss flowed from Mr Hassett’s actions, the applicant submits that “[w]hilst there is no evidence of any financial loss suffered as a result of the contraventions, it may be inferred that there was a loss of productivity. The contraventions resulted in two stoppages of the crane work, and required the attention of site management”.

29    As to whether the contraventions were distinct, the applicant submits that the Court should impose three penalties each on Mr Hassett and the CFMMEU for their contraventions of the FW Act, as follows:

(a)    two penalties on Mr Hassett for his contraventions of ss 499 and 500 on 5 June 2017;

(b)    one penalty on Mr Hassett for his contravention of s 500 on 6 June 2017;

(c)    two penalties on the CFMMEU for its contraventions of ss 499 and 500 on 5 June 2017; and

(d)    one penalty on the CFMMEU for its contravention of s 500 on 6 June 2017.

30    The applicant concedes that “[t]here is some overlap between the contraventions of sections 499 and 500 on 5 June 2017, in that the section 499 contravention relates to Mr Hassett’s conduct of climbing on the crane while it was in operation and ignoring requests to not do so. The contravention of section 500 also relates to that conduct but also encompasses Mr Hassett’s admitted conduct of using insulting language and engaging in abusive behaviour.”

31    The applicant also submits that s 557(1) of the FW Act is not applicable because ss 499 and 500 are not specified in s 557(2). Section 557(1) provides as follows:

(1)    For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:

(a)    the contraventions are committed by the same person; and

(b)    the contraventions arose out of a course of conduct by the person.

32    The applicant agrees, however, that s 557 does not exclude the common law principle of taking into account, when imposing a penalty, whether the conduct complained of constituted a single course of conduct. See, by way of example only, Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458 at 478, [88] (Dowsett and Rares JJ).

33    The applicant says, however, that s 556 of the FW Act is not engaged “because of the more expansive nature of the conduct” constituting the s 500 contravention, citing Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bendigo Theatre Case) (No 2) [2018] FCA 1211 (Tracey J), as follows:

40.    The Commissioner alleged that Mr Davies’ conduct at the site on 29 July 2014 gave to (sic) rise to contraventions of both ss 497 and 500 of the FW Act. These were the fifth and sixth contraventions.

41.    The respondents contended that only one penalty should be imposed in respect of that conduct. They relied on s 556 of the FW Act which relevantly provides that:

If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of the Commonwealth in relation to that conduct.

42    …

43.    The contravention of s 497 occurred because Mr Davies refused to produce his entry permit when requested to do so. I ventured the observation that such a contravention might also constitute “improper” conduct for the purposes of s 500. The finding that Mr Davies had contravened s 500 was not however founded simply on his contravention of s 497. As appears from [148] other aspects of Mr Davies’ conduct were brought to account in determining his liability under s 500. They included his failure to give notice of his attendance, his failure to comply with a direction that he should leave the site and his subsequent conduct of an inspection of parts of the site in defiance of the direction.

The respondents’ submissions

34    The respondents submit that the contravening conduct on both 5 and 6 June 2017 cannot be characterised as approaching or warranting a penal response in the very high or high range for the following reasons.

35    First, the respondents say both contraventions were isolated, not systematic and did not occur over any extended period.

36    Secondly, they submit that the contraventions were constituted by Mr Hassett’s conduct in climbing onto the crane, having a short conversation with the crane driver and interspersing his discussions with management with foul language. They submit that Mr Hassett was otherwise legitimately and lawfully present on the Site on both dates and inquiring into suspected contraventions of the WHS Act.

37    Thirdly, although the respondents concede that Mr Hassett’s “foray onto the crane … was entirely inappropriate”, they say that it must nonetheless “be viewed in [the] context [that it was] spontaneous … [and] was neither planned nor premeditated and occurred in the context of an otherwise lawful exercise of rights”.

38    Fourthly, although the respondents acknowledge that the crane on 5 June 2017 ceased work for some 20 minutes as a result of the Mr Hassett’s conduct and for 5 minutes on 6 June 2017, they submit that there is no evidence of tangible economic loss.

39    Fifthly, although the respondents accept that the contravening conduct on both days was deliberate, they say that “there was no evidence or suggestion that it was part of a concerted or deliberate campaign”.

40    For those reasons the respondents submit that:

In the circumstances, the contravening conduct in relation to the 5 June 2017 entry falls in the middle of the spectrum of objective seriousness. Given the more confined nature of the contravening conduct on 6 June 2017 (which did not involve the use of foul language and caused a cessation of work by the crane one quarter as long as that on 5 June 2017), the contravening conduct on that date is objectively less serious than that on 5 June 2017 and falls below the middle of the range of objective seriousness.

41    On the question of deterrence, the respondents submitted:

Specific deterrence focuses on the party the penalty is to be imposed on and the likelihood of that party being involved in similar wrongdoing in the future.

[Mr Hassett] ceased being a permit holder on 11 December 2018. He is no longer able to exercise entry rights under either the FW Act or the WHS Act. All his prior contraventions of the FW Act have stemmed from the exercise, or attempted exercise, of entry rights. There is no longer any potential for him to exercise entry rights as he is not a permit holder.

This is relevant to assessing the need for specific deterrence and the role of specific deterrence in the sentencing exercise. Whilst specific deterrence is still pertinent, given that the First Respondent remains an official of the Third Respondent, the fact he is no longer a permit holder means it plays a lesser role in fixing appropriate penalties.

(Footnotes omitted).

42    The respondents contend that a constituent element of the contravention of s 500, as pleaded, is that Mr Hassett did not comply with a reasonable request to get off the crane, and that because his conduct in not complying with that request is pleaded as the single matter that makes out the s 499 contravention, that means that the particular conduct comprising the s 499 contravention is also encapsulated in the s 500 contravention. They contend that “[i]t is not to the point in applying s 556 in the circumstances of the present case that the s 500 contravention, of its nature, can (and does) involve conduct additional to the s 499 contravention. The particular conduct to which the s 499 contravention is directed is entirely encompassed by the s 500 contravention. In the circumstances, s 556 is triggered and the Court cannot impose a separate penalty in relation to the s 499 contravention”.

43    The respondents concede that that submission is contrary to the reasoning of Tracey J in The Bendigo Theatre Case, set out at [34] above, but say that his Honour’s “analysis involves a misapplication of s 556, is plainly wrong and should not be followed”.

44    The respondents submit, in the alternative, that the course of conduct or “one transaction” principle should be applied in relation to the 5 June 2017 contraventions, relying on this passage from the decision of the Full Court in Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2017) 258 FCR 312 at 448, [424] (Middleton, Beach and Moshinsky JJ):

… in a civil penalty context, the course of conduct principle can be conceived of as a recognition by the courts that the deterrent effect in respect of a civil penalty (at both a specific and general level) is measured by reference to the nature of the conduct for which it is imposed. It is therefore of paramount importance to identify whether multiple contraventions constitute a single course of conduct or separate instances of conduct, so as to ensure that an appropriate deterrent effect is achieved by the imposition of the penalty or penalties in respect of that particular conduct.

45    However, as the Full Court (Allsop CJ and Collier and Rangiah JJ) explained in Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) [2018] FCAFC 203:

90.    That there can be one penalty from multiple contraventions was recognised [in Australian Building and Construction Commissioner v Construction Forestry, Mining and Energy Union 254 FCR 68] … This is not, however, a function of a course of conduct limiting the penalty to one contravention (which the multiple contraventions are not) or limiting the penalty for multiple contraventions to one penalty by reference to one maximum penalty. The task is to evaluate the conduct and its course (called a course of conduct) and assess what penalty is, or penalties are, appropriate for the proven contraventions.

91.    Central to the above is the recognition that the imposition of penalties must be informed by the particular legislative provision. Absent the relevant application of a provision such as s 557(1) of the Fair Work Act, the task is to evaluate the considerations informing the contraventions (factual and legal) in order to impose appropriate penal relief that does not punish twice for the same conduct. To use a phrase such as “a course of conduct” may imply that there is such an abstracted concept to be found, and once found it implies a single contravention or a single maximum penalty. That is the danger of the phrase. Rather, it is necessary (in the absence of a statutory enquiry such as in s 557(1)) to examine all the conduct and enquire how its course and its explanation factually and legally informs the imposition of penal orders, in particular to avoid double punishment.

46    That reasoning is applicable because s 557(1) of the FW Act does not apply to contraventions of ss 499 and 500.

Consideration

47    I will deal first with the question of whether s 556 of the FW Act applies to Mr Hassett’s contravening behaviour on 5 June.

48    I am not persuaded that Tracey J’s reasoning in The Bendigo Theatre Case, set out at [33] above, involves any misapplication of s 556 or is plainly wrong and should not be followed, as the respondents submit. On the contrary, in my view his Honour’s reasoning is, with respect, correct.

49    It is obvious, and counsel for the applicant did not seek to say otherwise, that the one essential factual component of the s 499 contravention – the request made of Mr Hassett to get off the crane – also makes up the more multi-faceted contravention of s 500 – which includes intentionally hindering and/or obstructing of the crane driver by climbing on the crane when it was in operation, stopping the crane driver from performing crane work, acting in an improper manner by climbing on the crane while it was in operation, using insulting language, and engaging in abusive behaviour.

50    It follows that a finding that Mr Hassett contravened s 500 is not founded simply on his contravention of s 499, that is, not merely because he refused to get off the crane. Those other multi-faceted aspects of his conduct which are pleaded are to be brought to account in determining his liability under s 500. This case is relevantly indistinguishable from The Bendigo Theatre Case at [43], as counsel for the respondents recognised. In my view, the approach taken by Tracey J in that case is correct because the conduct constituting the contraventions, for the purposes of s 556, is not the same.

51    I also do not accept the respondent’s submission that because the contraventions happened on the same day at the same site, and that Mr Hassett’s refusal to get off the crane is a component of both contraventions, that his conduct on 5 June 2017 should be regarded for the purposes of imposing penalties as “a single incursion into unlawful conduct”. They are, in my view, sufficiently separate and discrete actions that they should not be regarded as forming part of one course of conduct.

52    I next deal with the applicant’s submission that there is a difference of opinion to be discerned from some of the cases about the proper approach to the imposition of penalties, and the importance of long standing recidivism. Counsel for the applicant contended that the reasoning in two cases – The Bendigo Theatre Case at [73] and Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126 (Tracey and Logan JJ, Bromwich J dissenting), especially at [13]-[27] and [66]-[69] – is to be read as more readily permitting the imposition of maximum penalties on an irrepressible offender, which thumbs its nose at the law, and regards the payment of such penalties as a cost of doing business, without offending the fundamental rule of sentencing that courts do not punish for past contraventions in respect of which a penalty has already been imposed.

53    In my view, those cases are not to be read that way. If I am wrong about that, then, in any event, I will follow those cases which form the preponderance of authority and, in my view, correctly state the principles governing the approach that courts take in going about the task of imposing appropriate penalties on recidivist offenders. For recent and authoritative explanations of the correct principles, see Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 at 63, [154]- [156] (Jagot, Yates and Bromwich JJ); Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97; (2018) 280 IR 28 at 41, [22] (Allsop CJ, White and O’Callaghan JJ); Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; (2019) 363 ALR 246 at 279-280, [176] (Allsop CJ, Collier and Rangiah JJ); Parker v Australian Building and Construction Commissioner [2019] FCAFC 56 at [339]-[342] (Besanko and Bromwich JJ, Reeves J agreeing).

54    In that regard, I will not repeat what I said in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2018] FCA 1968 at [46]-[49] and Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 468 at [44]-[47]).

55    With those principles in mind, I now turn to consider the appropriate penalties in respect of the (admitted) contraventions.

5 June 2017

56    In my view, the conduct of Mr Hassett on 5 June 2017 was a serious breach of both ss 499 and 500, despite counsel’s attempts to minimise it by asking that it be viewed “in context” (including that for some time that day Mr Hassett was on the Site not causing trouble). It was serious because it was very dangerous, which Mr Hassett must have known, and it was serious because Mr Hassett gained entry to the site purportedly in respect of safety concerns – only to place the crane operator and others potentially in harm’s way. And it was made all the more serious by the fact that when he was told to get off the crane, he refused.

57    Mr Hassett has also contravened the FW Act in a not dissimilar fashion twice before. The fact that he is no longer an official of the union seems to me to be of little significance.

58    I do take into account in his favour that Mr Hassett’s conduct did not apparently cause any tangible financial loss, and that he, like the CFMMEU, spared the court a liability hearing.

59    Accordingly, I will impose a penalty on Mr Hassett of $8,000 in respect of each contravention on that day.

60    The CFMMEU is, as the cases have said time and time again, a large organisation with significant financial resources which exhibits apparent willingness to contravene the FW Act in a serious way to impose its will. In light of those factors, and of the need for deterrence of an organisation of its size, I will impose a penalty of $40,000 on the CFMMEU for each of the contraventions on 5 June 2017.

6 June 2017

61    Mr Hassett’s behaviour on 6 June was less provocative, and did not last as long. But it was again, nonetheless, objectively serious. I will impose a penalty of $6,000 on Mr Hassett for his breach of s 500 on that day, and $35,000 on the CFMMEU.

Totality

62    In arriving at these penalties, I have had regard to the totality of the penalties, the overall seriousness of the contraventions, and the need for the proportionality of the penalties to the seriousness of the contraventions and to the conduct as a whole, consistently with the totality principle. See, by way of example only, Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560, at 583, [102] (Buchanan J).

Associate:

Dated:    6 June 2019