FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973

ORDERS

PENAL NOTICE

TO: THE CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION, DREW MACDONALD AND STEPHEN LONG

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

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

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

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

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

THE COURT DECLARES THAT:

1.    The Second Respondent contravened s 500 of the Fair Work Act 2009 (Cth) (“FW Act”) when exercising a right under Pt 3-4 of the FW Act:

(a)    on 20 February 2014, at the Laverton North Premises when, in the context of having failed to give notice of his proposed entry to those premises as required by s 487 of the FW Act and having failed, on request, to produce his entry permit as required by s 489 of the FW Act, he acted in an improper manner by:

(i)    in response to the request from the occupier of the premises to produce his entry permit, saying dismissively “We don’t do that. I don’t need one of those. Have you got something to hide”; and

(ii)    in defiance of a warning from the occupier that he would be trespassing if he did so, entering the Laverton North Premises.

(b)    on 21 February 2014, at the Laverton North Premises when, in the context of having failed to give notice of his proposed entry to those premises as required by s 487 of the FW Act and having failed, on request, to produce his entry permit as required by s 489 of the FW Act, he acted in an improper manner by:

(i)    in response to the request from the occupier of the premises to produce his entry permit, saying dismissively “Why you know we don’t do that … if I want to … talk to the guys I will”.

(c)    on 5 March 2014, at the Cheltenham Premises when, in the context of having failed to give notice of his proposed entry to those premises as required by s 487 of the FW Act and having failed, on request, to produce his entry permit as required by s 489 of the FW Act, he acted in an improper manner by:

(i)    in defiance of a warning from the occupier of the premises that he was not permitted to enter the site without having given notice of entry and producing his entry permit, entering the site.

(d)    on 5 March 2014, at the Laverton North Premises when, in the context of having failed to give notice of his proposed entry to those premises as required by s 487 of the FW Act and having failed, on request, to produce his entry permit as required by s 489 of the FW Act, he acted in an improper manner by:

(i)    in defiance of a warning from the occupier of the premises that he would be trespassing, entering the construction site.

2.    The Third Respondent contravened s 500 of the FW Act when exercising a right under Pt 3-4 of the FW Act:

(a)    on 27 February 2014, at the Cheltenham Premises when, in the context of having failed to give notice of his proposed entry to those premises as required by s 487 of the FW Act and having failed, on request, to produce his entry permit as required by s 489 of the FW Act, he acted in an improper manner by:

(i)    in response to the request made by the occupier of the premises to produce his entry permit saying dismissively “We’re not going down that path are we? … Even if I’ve got a permit, that’s our policy that we don’t show it”;

(ii)    in defiance of a warning from the occupier that the police would be called, entering the site; and

(iii)    making a threat to the site manager by saying that, “We will have 500 blokes on site here tomorrow, we won’t sign an EBA with you, next year you guys will be on nothing. Your wages will drop and you blokes will be on nothing”.

(b)    on 5 March 2014, at the Cheltenham Premises when, in the context of having failed to give notice of his proposed entry to those premises as required by s 487 of the FW Act and having failed, on request, to produce his entry permit as required by s 489 of the FW Act, he acted in an improper manner by:

(i)    despite being told by the occupier of the premises that he was not permitted to enter the site without giving notice of entry and producing his entry permit, dismissively and aggressively saying “You’re on the top of our hit list” and that he was “going onto the site to service [his] men” and then, defiantly, entering the site.

(c)    on 5 March 2014, at the Laverton North Premises when, in the context of having failed to give notice of his proposed entry to those premises as required by s 487 of the FW Act and having failed, on request, to produce his entry permit as required by s 489 of the FW Act, he acted in an improper manner by:

(i)    despite being told by the occupier of the premises that he was not permitted to enter the site without having given notice of entry and producing his entry permit, defiantly entering the site.

3.    The Third Respondent contravened s 340 of the FW Act on 27 February 2014, when attending at the Cheltenham Premises said that “We’ll have 500 blokes on site here tomorrow, we won’t sign an EBA with you, next year you guys will be on nothing. Your wages will drop and you blokes will be on nothing” and thereby threatened the taking of adverse action against Qanstruct (Aust) Pty Ltd (“Qanstruct”) that would directly or indirectly prejudice Qanstruct in relation to a contract of services and did so including because Qanstruct had exercised a workplace right to make a request, under s 489(2) of the FW Act, that the Third Respondent produce his authority documents for inspection.

4.    The First Respondent contravened:

(a)    section 500 of the FW Act on 20 February 2014 by reason of the conduct of the Second Respondent at the Laverton North Premises referred to in declaration 1(a);

(b)    section 500 of the FW Act on 21 February 2014 by reason of the conduct of the Second Respondent at the Laverton North Premises referred to in declaration 1(b);

(c)    section 500 of the FW Act on 5 March 2014 by reason of the conduct of the Second Respondent at the Cheltenham Premises referred to in declaration 1(c);

(d)    section 500 of the FW Act on 5 March 2014 by reason of the conduct of the Third Respondent at the Cheltenham Premises referred to in declaration 2(b);

(e)    section 500 of the FW Act on 5 March 2014 by reason of the conduct of the Second Respondent at the Laverton North Premises referred to in declaration 1(d);

(f)    section 500 of the FW Act on 5 March 2014 by reason of the conduct of the Third Respondent at the Laverton North Premises referred to in declaration 2(c);

(g)    section 500 of the FW Act on 27 February 2014 by reason of the conduct of the Third Respondent at the Cheltenham Premises referred to in declaration 2(a);

(h)    section 340 of the FW Act on 27 February 2014 at the Cheltenham Premises by reason of the conduct of the Third Respondent referred to in declaration 3.

In these declarations:

(i)    Laverton North Premises means the premises at 60 William Angliss Drive, Laverton North in Victoria; and

(ii)    Cheltenham Premises means the premises at 27-43 Grange Road, Cheltenham in Victoria.

THE COURT ORDERS THAT

5.    The First Respondent pay the following pecuniary penalties:

(a)    $20,000 in respect of its contravention of s 500 of the FW Act dealt with in declaration 4(a);

(b)    $5,000 in respect of its contravention of s 500 of the FW Act dealt with in declaration 4(b);

(c)    $20,000 in respect of its contraventions of s 500 of the FW Act dealt with in declarations 4(c) and 4(d);

(d)    $20,000 in respect of its contraventions of s 500 of the FW Act dealt with in declarations 4(e) and 4(f);

(e)    $35,000 in respect of its contravention of s 340 of the FW Act dealt with in declaration 4(h).

6.    The Second Respondent pay the following pecuniary penalties:

(a)    $1,800 in respect of his contravention of s 500 of the FW Act dealt with in declaration 1(a);

(b)    $500 in respect of his contravention of s 500 of the FW Act dealt with in declaration 1(b);

(c)    $3,000 in respect of his contravention of s 500 of the FW Act dealt with in declaration 1(c); and

(d)    $2,500 in respect of his contravention of s 500 of the FW Act dealt with in declaration 1(d).

7.    The Third Respondent pay the following pecuniary penalties:

(a)    $6,000 in respect of his contravention of s 340 of the FW Act dealt with in declaration 3;

(b)    $3,000 in respect of his contravention of s 500 of the FW Act dealt with in declaration 2(b); and

(c)    $2,500 in respect of his contravention of s 500 of the FW Act dealt with in declaration 2(c).

8.    The Second Respondent pay the penalties required by Order 2 personally in that he not, whether before or after the payment of those penalties:

(a)    seek to have or encourage the First Respondent 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 referable to the payment of the penalties, whether in whole or in part; and

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

9.    The Third Respondent pay the penalties required by Order 3 personally in that he not, whether before or after the payment of those penalties:

(a)    seek to have or encourage the First Respondent 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 referable to the payment of the penalties, whether in whole or in part; and

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

10.    The Applicant serve these orders on:

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

(b)    the Second and Third Respondents in accordance with rule 10.01 of the Federal Court Rules.

11.    The pecuniary penalties referred to in Orders 1, 2 and 3 be paid to the Commonwealth of Australia within 28 days.

12.    There be no order as to costs.

13.    The proceeding is otherwise dismissed.

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

REASONS FOR JUDGMENT

BROMBERG J:

BACKGROUND

1    The Applicant (“Commissioner”) seeks declarations and civil penalties in relation to alleged contraventions of the Fair Work Act 2009 (Cth) (“FW Act”) by the second (“MacDonald”) and third (“Long”) respondents. The Commissioner also seeks corresponding declarations and penalties against the first respondent (“CFMMEU”) (formerly known as the Construction, Forestry, Mining and Energy Union) by virtue of the alleged primary contraventions having been committed on its behalf. Unless otherwise apparent, a reference to the CFMMEU is intended as a reference to all of the respondents.

2    MacDonald and Long were, at all relevant times, officials of the CFMMEU who each held valid entry permits under the FW Act issued by the Fair Work Commission. MacDonald and Long, between them, entered two premises on which Qanstruct (Aust) Pty Ltd (“Qanstruct”) was head contractor, five times across four dates in 2014.  In total, MacDonald made four entries and Long made three as follows:

-    MacDonald entered premises at 60 William Angliss Drive, Laverton North in Victoria (“Laverton North Premises”) on 20 February 2014 (“first entry”);

-    MacDonald entered the Laverton North Premises on 21 February 2014 (“second entry”);

-    Long entered premises at 27-43 Grange Road, Cheltenham in Victoria (“Cheltenham Premises”) on 27 February 2014 (“third entry”);

-    MacDonald and Long entered the Cheltenham Premises on 5 March 2014 (“fourth entry”); and

-    MacDonald and Long entered the Laverton North Premises on 5 March 2014 (“fifth entry”).

3    The Commissioner alleges that in relation to each of the entries, there was a failure to give notice of entry in accordance with s 487 of the FW Act, and a failure, on request, to produce entry permits in accordance with s 489. Those failures in conjunction with other conduct are said by the Commissioner to amount to acting in an “improper manner” in contravention of s 500 of the FW Act. Section 500 is in the following terms:

Permit holder must not hinder or obstruct

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.

4    The Commissioner’s case is that each of MacDonald and Long contravened s 500 of the FW Act by acting in an “improper manner” while exercising, or seeking to exercise, the right of entry conferred by s 484 of the FW Act. That provision provides that a permit holder may enter premises for the purpose of holding discussions with employees.

5    In the primary judgment (Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 252 FCR 198 I held that MacDonald and Long had not, on any of the entries, contravened s 500. That was because I considered that the prohibition contained in that provision applied only to a permit holder who is “exercising, or seeking to exercise, rights in accordance with [Pt 3-4]” and that on the facts, neither MacDonald or Long had been exercising or seeking to exercise the right conferred by s 484. The findings I there made rested upon a construction of s 500 which, in the appeal judgment (Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88) was held to be incorrect.

6    The Full Court (Allsop CJ, Tracey and White JJ) allowed the appeal, dismissed a cross appeal and remitted the matter to me for further hearing in accordance with the Full Court’s reasons.

CONTRAVENTIONS OF SECTION 500

7    In light of the construction of s 500 adopted by the Full Court, each of MacDonald and Long accepts that he did contravene s 500 on each of his entries. The CFMMEU accepts that it is liable, on a derivative basis, for the contraventions of s 500 by MacDonald and Long.

8    The Commissioner seeks various declarations in relation to the contraventions of s 500. I consider that it is appropriate that declarations of contraventions be made. It is well settled that there is educative value and utility in formally recording the basis upon which the proceeding has been resolved.

9    However, for the purpose of determining the terms of the declarations to be made and also for the purpose of evaluating the penalties which should be imposed, it is necessary to identify, in relation to each entry by MacDonald and Long, the conduct in contravention of s 500.

10    That exercise involves some complexity.

11    In the primary judgment, I concluded that the Commissioner should be confined to his pleaded case and that the only instances of MacDonald or Long acting “in an improper manner” pleaded, were the failures of MacDonald and Long to provide notice of each entry as required by s 487 of the FW Act, and their failure to show their entry permits on request, as required by s 489 of the FW Act (see at [133] to [136]).

12    In the appeal judgment, Tracey J, with whom the rest of the Full Court relevantly agreed on this point, determined that I had overlooked a concession made by counsel for the CFMMEU at trial that “the manner in which the failures or refusals [to comply with ss 487 and 489] occurred” can be regarded as part of the Commissioner’s claims of MacDonald and Long acting in an “improper manner” (see appeal judgment [133]-[136]). However on the question of what constituted acting in an “improper manner”, Tracey J was not satisfied of any error in my refusal to take into account (because it had not been pleaded) that MacDonald and Long had caused interruptions to work as identified at [132] of the primary judgment.

13    Accordingly and given the confined nature of the Commissioner’s case, in making the findings I now need to make, specifying the acts which constituted MacDonald and Long acting in an “improper manner”, I can only take into account, in so far as it is permissible to do so, the failure to give notice, the refusal to show entry permits and the manner in which those failures and refusals occurred.

14    It is necessary to observe, however, that in the appeal judgment, only Tracey J was of the view that a bare failure to comply with the statutory obligation imposed by either ss 487 or 489, unaccompanied by other conduct, could constitute acting in an “improper manner” contrary to s 500 (see at [122]). Justice White held that the failures by MacDonald and Long to give notice of their entries and to produce their entry permits could not, by themselves, constitute acting in an improper manner for the purposes of s 500 (at [202]). That view is consistent with the observations made by Allsop CJ (at [6]-[7]) with which White J expressed his agreement at [201]. As Allsop CJ observed at [7], if impropriety was to be found in the failure to satisfy the statutory obligation imposed by ss 487 or 489, those provisions (which are not penalty provisions) would be converted into penalty provisions through the application of s 500.

15    The observations of Allsop CJ commenced by referring with approval to observations made by White J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1287 at [173]-[174], where White J considered a submission that an entry onto premises for a s 484 purpose, without the prior provision of a s 487 notice, should not be regarded as improper because s 487 is not itself a civil remedy provision. That submission was not accepted by White J principally on the basis that s 487 “is directed to that which a permit holder must do before entering premises, and not to the consequence of the permit holder entering without having provided notice of entry in accordance with its terms”.

16    Those observations made by White J draw a distinction between the failure to satisfy the statutory requirements of s 487 and conduct consequential upon that failure. It seems to me that in order to avoid converting s 487 (and also s 489) into penalty provisions (as Allsop CJ and White J held to be necessary), it is only conduct consequential upon or which is additional to but accompanies the failure to meet the statutory requirements of either ss 487 or 489 that may, in part or in whole, constitute acting in an “improper manner” for the purposes of s 500.

17    The analysis draws attention to the distinction between the legal consequence and the practical consequence of a failure by a permit holder to give notice of an intended entry and show his or her entry permit on the request of the occupier. The legal effect of the failure to satisfy the statutory requirements of ss 487 or 489 is given by s 486 which removes what would otherwise have been the permit holder’s statutory authority to enter and remain on the premises. In other words, the legal effect of the failure to satisfy either of ss 487 or 489 is to render the entry unlawful, unless it is otherwise made lawful by the grant of the occupier’s permission or by some other means. That is the place or role of ss 487 and 489 in effectuating the right of entry scheme provided for by Part 3-4 of the FW Act (see further the discussion at [41]-[43] below).

18    The practical effect of a failure to give notice of entry is that the benefit of the provision of the notice to the occupier will have been lost. That effect may or may not lead to loss or inconvenience to the occupier. Much will depend on the particular circumstances of the entry in question and, it is those circumstances that will likely determine the existence and extent of impropriety for the purposes of s 500. Similarly, with the failure of a permit holder to show a permit. That has the practical effect of denying the occupier the opportunity to verify who it is that is seeking to enter the premises and that the person doing so holds the required authority.

19    Beyond those practical consequences, the acts of failing to give notice or refusing to show an entry permit may be accompanied by conduct capable of constituting impropriety for the purposes of s 500. The manner in which a refusal is given – that it is accompanied by aggression, defiance or a threat – may constitute the relevant impropriety.

20    Both Allsop CJ (at [8]) and White J (at [174] and [203]), agreed with the conclusion of Tracey J that in exercising or seeking to exercise their rights of entry on each of their entries, MacDonald and Long had acted in an “improper manner”. Given the view expressed by their Honours as outlined above, I consider that they did so because of the additional conduct of MacDonald and Long which accompanied their failure to satisfy the statutory requirements of ss 487 and 489.

21    At [123], Tracey J noted that each of the five entries involved conduct additional to the failure to observe the statutory requirements of ss 487 and 489. His Honour relevantly said this:

It was a common feature of each entry that representatives of companies managing the sites challenged the officials and directed their attention to relevant statutory requirements. In each case the representatives were met with a dismissive response and (save on the second entry) the permit holder proceeded on to the construction site despite being warned that he would be trespassing if he did so.

22    When those observations are read with the later observations of Tracey J at [133]-[136], that the Commissioner’s claims of impropriety extended to “the manner in which the failures or refusals occurred”, I would conclude that the observations made at [123] are intended to address the manner of the failures and refusals and their characterisation as improper.

23    The characterisation of the manner in which MacDonald and Long failed to satisfy the requirements of ss 487 and 489 described by Tracey J at [123] is based on [29]-[33] of his Honour’s reasons where his Honour summarised the findings made in the primary judgment about the circumstances of each entry. At [29]-[33], Tracey J said this:

[29]     The first entry occurred on 20 February 2014. Mr MacDonald attended at the Laverton North premises. When Mr MacDonald arrived at the site compound (the area containing the site administration offices and the facilities for employees), the site manager asked him about the purpose of his visit. Mr MacDonald responded that he wanted to talk to his workers. The manager asked Mr MacDonald if he had given 24 hours’ notice and if he had his entry permit with him. Mr MacDonald responded: “We don’t do that. I don’t need one of those. Have you got … something to hide?” The manager told Mr MacDonald that he could not walk on [sic] the construction site and that if he did so he would be trespassing. Despite this Mr MacDonald entered the construction site and had a series of conversations with workers.

[30]     Mr MacDonald returned to the site compound on the following day. This was the second entry. He had not given 24 hours’ notice of his entry and he did not produce his permit when requested to do so. The site manager asked Mr MacDonald what his purpose in visiting the site was. Mr MacDonald replied that he wanted to talk to some concreters about a site allowance. When asked to produce his permit Mr MacDonald said: “You know we don’t do that … if I want to … talk to the guys I will.” The manager warned Mr MacDonald that, if he entered the construction site, he would be trespassing. After a tentative move to enter the site, Mr MacDonald appeared to have second thoughts and returned to the manager’s office, not having entered the construction site.

[31]    The third entry occurred on 27 February 2014 at the Cheltenham premises. Mr Long attended the site without having given notice of his proposed entry. When asked by a manager in the administration office why he was there Mr Long said that he was going “to see the guys”. The manager asked for his permit. Mr Long responded: “We’re not going down that path, are we? … Even if I’ve got a permit, that’s our policy that we don’t show it.” The manager advised Mr Long that if he ventured on to the site the police would be called. In the course of a verbal confrontation Mr Long told the manager: “You … don’t want to be the dog who calls the cops on a union official … [W]e won’t forget this low act. We won’t forget that you did this.” Mr Long then said that he was going on to the site “to service my men”. He went on to the construction site and spoke to a group of concreters and form workers. Having done so Mr Long returned to the site compound and asked the manager with whom he had had the exchange if he had called the police. When told that the police had been called Mr Long had said, in a raised voice, that: “We will have 500 blokes on site here tomorrow, we won’t sign an EBA with you, next year you guys will be on nothing. Your wages will drop and you blokes will be on nothing.” After this conversation Mr Long went back on to the construction site. The police arrived and had a conversation with Mr Long who subsequently left the site.

[32]    The fourth entry took place on 5 March 2014 at the Cheltenham premises. Both Messrs MacDonald and Long entered the administration area site. Neither had given notice of their proposed entry. They spoke to the site manager. Mr Long said that he was there “to go and see … his men.” When told that they would not be permitted to enter the site without having given notice of entry and producing their entry permits, Mr Long told the manager that: “You’re on the top of our hit list.” Mr Long said that he was “going on to site to service [his] men”. Messrs Long and MacDonald then entered the construction site. They were observed to have been in the company of a worker and engaged in a conversation with him. The police were called. After they arrived and spoke to Messrs MacDonald and Long, the two officials left the site.

[33]    Messrs MacDonald and Long made the fifth entry at the Laverton North premises. Neither had provided 24 hours’ notice of their attendance. Neither produced his entry permit when requested to do so. Despite being warned that they would be trespassing, both entered the construction site and conducted conversations with workers engaged there.

24    As Allsop CJ said in the appeal judgment at [7] “[w]hat is improper is an evaluative conclusion by way of characterisation”. Proceeding on that basis and focusing on the manner in which MacDonald and Long failed to satisfy the requirements of ss 487 and 489, I find that:

1.    MacDonald contravened s 500 of the FW Act when exercising a right under Pt 3-4 of the FW Act:

(a)    on 20 February 2014, at the Laverton North Premises when, in the context of having failed to give notice of his proposed entry to those premises as required by s 487 of the FW Act and having failed, on request, to produce his entry permit as required by s 489 of the FW Act, he acted in an improper manner by:

(i)    in response to the request from the occupier of the premises to produce his entry permit, saying dismissively “We don’t do that. I don’t need one of those. Have you got something to hide”; and

(ii)    in defiance of a warning from the occupier that he would be trespassing if he did so, entering the Laverton North Premises.

(b)    on 21 February 2014, at the Laverton North Premises when, in the context of having failed to give notice of his proposed entry to those premises as required by s 487 of the FW Act and having failed, on request, to produce his entry permit as required by s 489 of the FW Act, he acted in an improper manner by:

(i)    in response to the request from the occupier of the premises to produce his entry permit, saying dismissively “Why you know we don’t do that … if I want to … talk to the guys I will”.

(c)    on 5 March 2014, at the Cheltenham Premises when, in the context of having failed to give notice of his proposed entry to those premises as required by s 487 of the FW Act and having failed, on request, to produce his entry permit as required by s 489 of the FW Act, he acted in an improper manner by:

(i)    in defiance of a warning from the occupier of the premises that he was not permitted to enter the site without having given notice of entry and producing his entry permit, entering the site.

(d)    on 5 March 2014, at the Laverton North Premises when, in the context of having failed to give notice of his proposed entry to those premises as required by s 487 of the FW Act and having failed, on request, to produce his entry permit as required by s 489 of the FW Act, he acted in an improper manner by:

(i)    in defiance of a warning from the occupier of the premises that he would be trespassing, entering the construction site.

2.    Long contravened s 500 of the FW Act when exercising a right under Pt 3-4 of the FW Act:

(a)    on 27 February 2014, at the Cheltenham Premises when, in the context of having failed to give notice of his proposed entry to those premises as required by s 487 of the FW Act and having failed, on request, to produce his entry permit as required by s 489 of the FW Act, he acted in an improper manner by:

(i)    in response to the request made by the occupier of the premises to produce his entry permit saying dismissively “We’re not going down that path are we? … Even if I’ve got a permit, that’s our policy that we don’t show it”;

(ii)    in defiance of a warning from the occupier that the police would be called, entering the site; and

(iii)    making a threat to the site manager by saying that, “We will have 500 blokes on site here tomorrow, we won’t sign an EBA with you, next year you guys will be on nothing. Your wages will drop and you blokes will be on nothing”.

(b)    on 5 March 2014, at the Cheltenham Premises when, in the context of having failed to give notice of his proposed entry to those premises as required by s 487 of the FW Act and having failed, on request, to produce his entry permit as required by s 489 of the FW Act, he acted in an improper manner by:

(i)    despite being told by the occupier of the premises that he was not permitted to enter the site without giving notice of entry and producing his entry permit, dismissively and aggressively saying “You’re on the top of our hit list” and that he was “going onto the site to service [his] men” and then, defiantly, entering the site.

(c)    on 5 March 2014, at the Laverton North Premises when, in the context of having failed to give notice of his proposed entry to those premises as required by s 487 of the FW Act and having failed, on request, to produce his entry permit as required by s 489 of the FW Act, he acted in an improper manner by:

(i)    despite being told by the occupier of the premises that he was not permitted to enter the site without having given notice of entry and producing his entry permit, defiantly entering the site.

25    I will make declarations of contraventions of s 500 in those terms as well as declarations of contraventions by the CFMMEU which reflect the contraventions by MacDonald and Long.

CONTRAVENTION OF SECTION 340(1)

26    Turning then to the contravention by Long of s 340(1), a declaration of contravention is sought by the Commissioner in relation to the threat made by Long during the third entry and described above at [23].

27    In the appeal judgment, the Full Court held that s 489(2) of the FW Act, which provides that if a permit holder has entered premises under s 484 “the permit holder must produce his or her authority documents for inspection by the occupier of the premises on request”, conferred on the occupier an entitlement to a benefit (at [160]). The Full Court took the view that the making of a request by Qanstruct of Long to produce his entry permit constituted the exercise of a “workplace right” within the meaning of s 341(1) of the FW Act. On the basis of that reasoning and the findings made in the primary judgment that:

(i)    in making the threat, Long had threatened to take action within the meaning of s 342(2)(a) of the FW Act (at [173]);

(ii)    his threat constituted adverse action for the purposes of Item 7(c) of s 342(1) (at [174]);

(iii)    that Long had understood the request made by Qanstruct as being a request to produce his entry permit in accordance with s 489(2) (at [176]); and

(iv)    that Long had failed to discharge his onus under s 361(1) of the FW Act, to prove that the request was not the reason, or a reason, why he took the adverse action (at [204])

it follows that by making the threat, Long contravened s 340(1).

28    Accordingly I will make the following declaration in relation to Long’s contravention of s 340(1):

Long, on 27 February 2014, when attending at the Cheltenham Premises said that “We’ll have 500 blokes on site here tomorrow, we won’t sign an EBA with you, next year you guys will be on nothing. Your wages will drop and you blokes will be on nothing” and thereby threatened the taking of adverse action against Qanstruct that would directly or indirectly prejudice Qanstruct in relation to a contract of services and did so including because Qanstruct had exercised a workplace right to make a request, under s 489(2) of the FW Act, that Long produce his authority documents for inspection.

29    I will also make declarations of contravention against the CFMMEU which reflect Long’s contravention of s 340(1).

POSITION OF THE PARTIES

30    The Commissioner sought orders under s 546(1) of the FW Act imposing pecuniary penalties on each of MacDonald, Long and the CFMMEU separately, for their contraventions of s 500 and s 340(1) of the FW Act. The Commissioner did not seek a separate penalty with respect of the contravention of s 500 by Long and the CFMMEU in relation to the third entry, should the Court impose a penalty with respect to the contravention of s 340(1) which occurred during that entry. The Commissioner recognised that Long’s conduct on the third entry in contravention of s 500 overlapped with the conduct by him in contravention of s 340(1). The Commissioner acknowledged that that overlap might be addressed by s 556 of the FW Act or the course of conduct principle or simply in the application of the totality principle. The Commissioner submitted that the s 340 contravention should be regarded as the lead contravention for the purposes of imposing penalties and that, in relation to his conduct on the third entry, only a penalty for contravening s 340(1) should be imposed upon Long. The respondents did not contest the correctness of that suggested approach and I accept it as being appropriate.

31    Having regard to all relevant factors and principles, the Commissioner submitted that penalties should be imposed as follows:

(a)    For MacDonald — Penalties at the high end of the range for his contraventions of s 500 at the first and second entries and at the very high end for the fourth and fifth entries.

(b)    For Long — Penalties at the very high end for his contraventions of s 340(1) on the third entry and his contraventions of s 500 on the fourth and fifth entries.

(c)    For the CFMMEU − Penalties close to the maximum for the first and second entries for its contraventions of s 500 and the maximum available penalty for the third entry for its contravention of s 340(1) and the fourth and the fifth entries for its contraventions of s 500.

32    The respondents contested that penalties at the high end of the range were appropriate for any of the contraventions in questions.

APPLICABLE PRINCIPLES

33    The general principles relevant to the imposition of penalties under the FW Act are well settled and were not in contest.

34    In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (“Cardigan St Case”) [2018] FCA 957 at [48]-[54] I surveyed the authorities and set out the applicable principles for the imposition of penalties pursuant to s 546(1) of the FW Act.

[48]    Section 546(1) of the FW Act provides no express guidance in relation to the determination of an appropriate pecuniary penalty in respect of the contravention of a civil remedy provision under the FW Act. The section simply says that the Court may make an order imposing a pecuniary penalty the Court considers is appropriate.

[49]    However, the authorities provide substantial guidance. The purpose of a civil penalty is primarily, if not wholly, protective to promote the public interest in compliance: Commonwealth of Australia v Director of the Fair Work Building Industry Inspectorate (2015) 258 CLR 482 (the “Agreed Penalties Case”) at [54]-[55] (French CJ, Kiefel, Bell, Nettle and Gordon JJ). This objective is achieved by putting a price on contraventions that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene. Both specific and general deterrence are important considerations: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113 (the “QLD Infrastructure Case”) at [98] (Dowsett, Greenwood and Wigney JJ).

[50]    In relation to specific deterrence, it has been frequently observed that a pecuniary penalty for a contravention of the law must be fixed with a view to ensuring that the penalty is not to be regarded by the offender or others as an “acceptable cost of doing business”: Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at [66] (French CJ, Crennan, Bell and Keane JJ); Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20 at [62]-[63] (Keane CJ, Finn and Gilmour JJ). On the other hand, general deterrence is directed at sending a message to a broader audience that contraventions of the kind under consideration are serious and not acceptable: Australian Securities and Investments Commission v Southcorp Ltd (No 2) (2003) 130 FCR 406 at [32] (Lindgren J).

[51]    The fixing of a pecuniary penalty involves the identification and balancing of all the considerations relevant to the contravention and the circumstances of the respondent, and making a value judgment as to what is the appropriate penalty in light of the protective and deterrent purposes of a pecuniary penalty. This process has been described as an “instinctive synthesis” akin to that undertaken in criminal sentencing: Markarian v The Queen (2005) 228 CLR 357 at [51] (McHugh J); QLD Infrastructure Case at [100].

[52]    A non-exhaustive list of the considerations that may be relevant when fixing a pecuniary penalty is conveniently set out in the QLD Infrastructure Case, where the Full Court identified those considerations that relate to the objective nature and seriousness of the offending conduct, and those that concern the particular circumstances of the respondent in question in the following terms:

[103]    The factors relating to the objective seriousness of the contravention include: the extent to which the contravention was the result of deliberate, covert or reckless conduct, as opposed to negligence or carelessness; whether the contravention comprised isolated conduct, or was systematic or occurred over a period of time; if the defendant is a corporation, the seniority of the officers responsible for the contravention; the existence, within the corporation, of compliance systems and whether there was a culture of compliance at the corporation; the impact or consequences of the contravention on the market or innocent third parties; and the extent of any profit or benefit derived as a result of the contravention.

[104]    The factors that concern the particular circumstances of the defendant, particularly where the defendant is a corporation, generally include: the size and financial position of the contravening company; whether the company has been found to have engaged in similar conduct in the past; whether the company has improved or modified its compliance systems since the contravention; whether the company (through its senior officers) has demonstrated contrition and remorse; whether the company had disgorged any profit or benefit received as a result of the contravention, or made reparation; whether the company has cooperated with and assisted the relevant regulatory authority in the investigation and prosecution of the contravention; and whether the company has suffered any extra-curial punishment or detriment arising from the finding that it had contravened the law.

[53]    In determining the appropriate penalty, the Court must also give consideration to the maximum penalty for the contravention. As the Full Court observed in the QLD Infrastructure Case at [106], there are at least three reasons for this: first, that the legislature has legislated for the maximum penalty as an expression of the legislature’s policy concerning the seriousness of the prescribed conduct; second, that it permits comparison between the case under consideration and the worst possible case (where the maximum penalty can be treated as the penalty appropriate for the worst possible case); and third, that the maximum penalty provides a “yardstick” which should be taken and balanced with all the other relevant factors.

[54]    While giving appropriate significance to the principle of deterrence, the amount of the penalty should also be proportionate to the contravention and should not be so high as to be oppressive: Trade Practices Commission v Stihl Chainsaws (Aust) Pty Ltd (1978) ATPR 40-091 (Smithers J) at 17,896; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 293 (Burchett and Kiefel JJ); QLD Infrastructure Case at [107].

35    The parties were in contest in relation to the application of the proportionality principle expressed at [54] of the Cardigan Street Case (as set out above) and its interaction with a compelling need to take into account a contravener’s prior contraventions. I recently dealt with that issue in Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972 at [26]-[30] as follows:

[26]    Three Full Courts of this Court have recently emphasised the importance of determining a penalty which is proportionate to the contravening conduct in the context of any need to take into account a contravener’s prior contraventions.

[27]    In Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97, Allsop CJ, White and O’Callaghan JJ observed (at [22]):

The overwhelming importance of deterrence as the protective purpose of the penalty does not exclude the need to determine a penalty which is proportionate to the contravening conduct. The history of contravention is to be taken into account in fixing the proper level of penalty for the proportionate response to the contravention in question. Proportionality has within it the need to characterise the seriousness of the contravention. Proportionality of penal response to a contravention assessed by reference to its seriousness and gravity is an essential characteristic of the application of the statute. The penal response is for that contravention, not earlier contraventions: Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465 at 477-478. Prior contraventions may reveal an apparent disregard for the Act and the need for deterrence by a penalty at a level appropriate to achieve that objective. It is to be borne in mind, however, that it is for the conduct in question that the penalty is imposed, not for prior conduct.

[28]    Relying on the Non-Indemnification Personal Payment Case and the reasons 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, Allsop CJ, Collier and Rangiah JJ said the following in Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191 (at [176]):

It is a fundamental principle, at the core of the judicial power to impose a penalty, that the imposition is for the contravention in question. Prior contraventions, even so many and often so serious as the Union may have engaged in in the past, is a factor which may be taken into account in determining the appropriate quantum for the contravention; it cannot be taken to lead to a penalty that is disproportionate to the gravity of the instant contravention. The maximum is for the worst category of cases.

[29]    Endorsing the observations in the Non-Indemnification Personal Payment Case quoted above at [28], Besanko and Bromwich JJ (with whom Reeves J agreed) in Parker v Australian Building and Construction Commissioner [2019] FCAFC 56 at [339] [348] elaborated upon the applicable principles by emphasising that:

    a court in imposing civil penalties is entitled to have regard to prior contravention in the exercise of its discretion, but not so as to permit such a history to be given such weight as to lead to the imposition of a penalty that is disproportionate to the gravity of the contravention that is being considered;

    the role of any past contravention should be no more than a prism through which to view the instant contravention;

    where past contraventions manifest an ongoing attitude of disobedience to the law, the heightened need for deterrence may indicate that a more severe penalty is warranted for the instant contravention;

    nonetheless, the penalty must still fall within the applicable range that is otherwise considered appropriate for the instant contravention.

[30]    The well settled principles most recently expressed in I call for a structured approach to the imposition of a penalty on a contravener with a history of contraventions, the object of which is to ensure that the contravener does not “suffer the fate of being sanctioned anew for past contraventions” (at [341]). First, the Court must, identify the applicable range of penalties for that contravention without regard to the contravener’s prior history of contraventions. Having done that, the Court should then take into account that history in assessing where, within the applicable range, the penalty should fall.

36    I need to also address the course of conduct and totality principles. The relevant authorities in relation to the common law course of conduct principle were also recently discussed in Parker (see at [267]-[288]). That principle recognises that where there is an interrelationship between the legal and factual elements of two or more contraventions, care must be taken to ensure that the contravener is not punished twice for what is essentially the same wrongdoing.

37    The following passage, in relation to the totality principle, from Mill v The Queen (1988) 166 CLR 59 at 63 (quoting with approval from Thomas, Principles of Sentencing (2nd Ed 1979) at 56-7, references omitted from the quote) was applied by the court in Parker (at [297]):

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.

The Court in Parker further noted in relation to the above (at [298]) that “[t]here is no particular formula or form of words by which a judge must conduct the necessary review.”

CONSIDERATION

38    At the time of the contraventions with which I am here dealing, the maximum penalty for a contravention of s 500 or s 340(1) by an individual was $10,200. The corresponding maximum penalty for a body corporate, such as the CFMMEU, was $51,000 per contravention.

39    As the principles to which I have referred require, the factors that bear upon the objective nature and seriousness of each of the contraventions need to be considered.

40    The Commissioner’s approach to the imposition of penalties in relation to the contraventions of s 500 was based on the bare failure of MacDonald and Long to satisfy the statutory requirements of ss 487 and 489 as constituting part of their acting in an “improper manner” for the purposes of s 500. In other words, the Commissioner did not merely seek to rely upon the practical consequence of those failures or conduct additional thereto, but also sought to rely on the bare failures to satisfy the statutory requirements themselves as elements of the impropriety. It did so contending that ss 487 and 489 were important provisions in the FW Act’s right of entry scheme and that the penalties imposed should reflect the respondent’s failures to comply with important statutory obligations.

41    For reasons I have given at [14]-[17] above, I have not included the bare failures to satisfy the statutory requirements of ss 487 and 489 as elements of either MacDonald or Long acting in an “improper manner” for the purposes of s 500. As I have sought to explain, to do that would have the effect of converting ss 487 and 489 into penalty provisions through the application of s 500.

42    Further to the reasons earlier given I should add that, in support of its contention, the Commissioner referred to the judgment of White J in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2016] FCA 413 at [39]-[47]. At [42], White J refers to what the Full Court (North, Flick and Bromberg JJ) said in Maritime Union of Australia v Fair Work Commission (2015) 230 FCR 15 at [14]-[15] that, in granting rights of entry, the legislature has sought to balance the interest of occupiers of premises, employers, unions and employees and that occupiers and employers have an interest in being able to conduct their business activities without disruption or inconvenience. As White J observed at [43], a number of provisions in Pt 3-4 are directed to achieving the balance to which the Full Court in Maritime Union referred. One such provision, to which White J referred at [44], is s 487 which requires the giving of notice. Although White J does not refer to it, to my mind s 489 is also a provision directed to achieving a balance of the respective interests to which the Full Court referred in Maritime Union. I agree with the contention made by the Commissioner that those provisions are important provisions in the legislative scheme. I agree also with the observation made by White J at [46] that s 500 is part of the scheme of balancing the respective interests of occupiers, employers, unions and employees.

43    However it is necessary, as White J stated at [47], that “the assessment of penalties for contraventions of s 500 should take account of its place in the statutory scheme”. Consistently with that observation, the other provisions within the scheme, including ss 487 and 489, also have a place in the statutory scheme. When their role is examined, what becomes apparent is that their place in the furtherance of the scheme, is addressed differently than for s 500. The mechanism used to effectuate the obligations imposed by s 500 is to provide for the imposition of penalties on those persons who fail to satisfy the statutory requirements. In contrast, the statutory requirements of ss 487 and 489 are not effectuated through the imposition of penalties. The mechanism deployed to effectuate those provisions is the removal, by the operation of s 486, of the right to enter or remain on premises which would otherwise have existed. Accordingly, whilst the assessment of penalties for contraventions of s 500 should take account of the place of that provision in the statutory scheme, it needs also to be recognised that it is not the place of s 500 to effectuate compliance with the statutory requirements of ss 487 and 489 by the imposition of penalties.

44    Section 500 imposes an obligation on a permit holder not to intentionally hinder or obstruct any person, or otherwise act in an improper manner when exercising or seeking to exercise rights of entry. It is fundamentally concerned with the conduct of the permit holder in the exercise or purported exercise of the right of entry. That is, conduct that has occurred on entry or whilst the permit holder remains on the premises entered. As I said at [131] of the primary judgment (consistently with the observations of the Full Court in Maritime Union at [14]-[15]):

The prohibition in s 500 upon a permit holder hindering, or obstructing or otherwise acting in an improper manner seems to me to be directed at giving effect to the concern identified by the object of Part 3–4 contained in s 480(c) of protecting “the right of occupiers of premises and employers to go about their business without undue inconvenience”. The concern there expressed is with the practical impact of union entry upon the capacity of occupiers and others on the premises to go about their usual business.

45    Where the contravention of s 500 is the result of a permit holder acting in an “improper manner”, the extent to which there has been an interference with the right of occupiers of the premises to go about their business without undue inconvenience, has an obvious bearing upon the objective seriousness of the contravention. The characterisation of a contravention as at a low or high level of seriousness necessarily involves comparisons. Very serious contraventions readily come to mind and include the prolonged disruption of work or conduct which imperils the safety or wellbeing of those that occupy the premises including, as an example, an assault or other forms of violence. Conduct of that kind is likely to be objectively very serious and deserving of penalties at the higher end of the range. A contravention of s 500 involving a minor disruption upon the capacity of occupiers to go about their usual business or a temporary loss of the peaceful enjoyment of the occupancy is less likely to warrant the characterisation of being an objectively serious contravention.

46    For the reasons I will now set out, putting aside the threat made by Long, the impropriety of MacDonald and Long confined, as it was on the Commissioner’s case, to the dismissive and defiant manner in which entry was made on to Qanstruct’s construction sites, cannot be categorised as objectively very serious. All impropriety is to be condemned. However there are obvious gradations of impropriety. Because the conduct here in question did not, on the scale of potential interference, substantially impinge upon the rights of the occupiers of the premises (Qanstruct and those working for it) to go about their business without undue inconvenience, the conduct is properly to be regarded as at the lower end of objective seriousness for contraventions of s 500.

47    It is necessary to consider each of the entries in context. Part of the relevant context is that, prior to about mid-February 2014, Qanstruct had no formal policy to guide the response of site managers to union officials seeking to enter its construction sites. Some of Qanstruct’s managers were in the practice of allowing entry on to a site in the absence of any prior notice on an adhoc basis. MacDonald had been allowed to enter the Laverton North premises prior to Christmas of 2013 and in late January 2014 in the absence of advance notice and essentially as an invitee. Likewise, Long had been allowed on to the Cheltenham premises on two occasions in about November 2013 and in early February 2014, without the provision of any prior notice and without being requested to show his entry permit on either occasion.

48    In about February 2014, Qanstruct’s senior staff received training and took up a new coordinated approach to union entries to Qanstruct’s construction sites which reflected a new policy by Qanstruct to require entry onto sites by union officials to comply with the conditions of entry required by Pt 3-4 of the FW Act, including the requirement to provide 24 hours’ notice and the requirement to produce an entry permit on request. There was no evidence that Qanstruct’s new right of entry policy was communicated to the CFMMEU prior to the first entry.

49    The first entry occurred shortly after Qanstruct implemented its new right of entry policy. The circumstances of that entry are summarised at [23] above and detailed at [13]-[17] of the primary judgment. MacDonald’s purpose for that entry is relevant to the nature and seriousness of the contravention. He entered the site and had a series of conversations with workers. There is no reason to suggest that, on this occasion, MacDonald had any other purpose than holding discussions with the workers on the Laverton North premises. MacDonald gave a dismissive response to the request that he show his permit and entered the site in defiance of the Qanstruct manager’s warning that he would be trespassing if he entered.

50    This was MacDonald’s first encounter with the change to the right of entry practice at Qanstruct construction sites that he had been accustomed to. The dismissive and defiant nature of his conduct may be somewhat ameliorated by the changed circumstances in which it occurred. There is no evidence of any loss or damage consequential upon the improper conduct. I accept, however, that dealing with MacDonald’s defiance would not have been pleasant for the Qanstruct manager and that he would have been distracted from his other duties whilst he followed MacDonald around the construction site. Further, MacDonald’s discussion with a group of about five or six concreters for about 5 minutes would also have distracted those workers. Additionally, MacDonald had a discussion with a civil earth worker, but again any interruption was short lived. I have some doubt as to whether the distractions to management and workers of the kind just referred to can be said to be a consequence of the dismissive and defiant manner in which the entry was made. It seems to me that those consequences may be said to flow from the entry itself rather than the manner in which the entry was effectuated. However, as the CFMMEU accept the Commissioner’s contention that the distractions (as set out at [132] of the primary judgment) were a consequence of the impropriety, I will take them into account.

51    In my view, although the capacity of the occupiers to go about their business without undue inconvenience was compromised by MacDonald’s conduct, the impact was not substantial and, in terms of its objective seriousness, I would assess the contravention as being at the lower end of the scale.

52    The second entry was also an entry by MacDonald onto the Laverton North premises. A summary of it is found at [23] and a more detailed account is given in the primary judgment at [18]-[22]. When confronted as to his purpose in visiting the premises, MacDonald replied that he wanted to talk to some concreters about a site allowance. There is no evidence that MacDonald’s purpose was other than to hold discussions with workers. When asked to produce his permit and told of the notice requirement, MacDonald gave a dismissive response. That occurred at the site compound located at the entry to the site which was fenced off from the construction site on the premises. When MacDonald moved to enter the construction site he was warned by the Qanstruct manager not to do so. MacDonald did not enter the construction site and returned to the manager’s office in the site compound where a further discussion occurred. Whilst on the site compound waiting to speak to the site manager, MacDonald called for the concreting manager on the construction site to come over and they held a discussion for a couple of minutes.

53    Unlike the other entries, there was no defiance by MacDonald of the warning given by the Qanstruct manager not to enter and no resulting difficulty to the occupier. It is not necessary, in that circumstance, to resolve the contested submissions made by the parties as to whether MacDonald’s presence on the site compound was unauthorised or occurred under license. Whichever be the case, it cannot be said that the occupier was unduly inconvenienced by the mere presence of MacDonald at its door. It is only the dismissive remark made by MacDonald and any consequence therefrom that needs to be taken into account on the question of the seriousness of the contravention. There is no evidence of any loss or damage. I take into account that the concreting manager was distracted for a couple of minutes.

54    Considering only the nature and seriousness of this contravention, I regard it as at the low level on the scale, significantly lower than the first entry.

55    The third entry was that made by Long onto the Cheltenham premises on or around midday on 27 February 2014. Having accepted the Commissioner’s contention that the conduct of Long also constitutes a contravention of s 340(1) and that that provision should be regarded as the lead contravention for the purposes of imposing penalties, I need not further consider this entry in relation to the contravention of s 500.

56    Turning then to consider the conduct by reference to the contravention of s 340(1), an important consideration is the nature and extent of the adverse action taken by Long. The finding I have made is that Long took adverse action against Qanstruct by making a threat that “500 blokes” would attend the site the next day and that the CFMMEU would not sign an enterprise agreement with Qanstruct and that the wages of Qanstruct’s employees would consequently drop. I have held that the threat was partly motivated by Qanstruct’s request that Long show his entry permit. I accept, however, given the findings I made at [202] of the primary judgment, that the threat that was made should also be regarded as responsive to Qanstruct’s manager advising Long that he had called the police.

57    A further contextual consideration is that the threat was made on the first occasion upon which Long was confronted with Qanstruct’s new right of entry policy. As I have stated, Long had previously been permitted to enter the same site without being required to show his right of entry permit. It is not clear however whether given MacDonald’s experience of the changed policy, Long was unaware of it on 27 February 2014.

58    Even if it were accepted that Long was taken by surprise, I would not attach much significance to that circumstance in assessing the seriousness of the contravention. Similarly, I give little weight to the fact that the threat was only in part responsive to the making of the request to see the entry permit. Neither of those considerations justify the making of the threat nor significantly diminish its seriousness.

59    The more pertinent considerations, in my view, concern the nature and importance of the workplace right involved and the nature and extent to which the FW Act’s intended protection of that right was undermined. The workplace right here in question, in essence, provided Qanstruct with the capacity to verify who Long was and whether he was authorised to enter its premises. In practical terms and in relation to the entry made by Long on 27 February 2014, the adverse action taken might be regarded as having had little or no consequence in undermining that right. The Qanstruct manager concerned knew who Long was and must have known, including because no notice of entry had been given, that Long’s entry was not authorised. However, the threat made should not be regarded as merely addressing the instant request. The threat made by Long should be regarded as directed at undermining Qanstruct’s ongoing right and capacity to verify the legitimacy of entries by Long and other officials of the CFMMEU. The threat made needs to be considered in the context, that, when earlier pressed to show his permit Long said “we’re not going down that path, are we? … even if I’ve got a permit, that’s our policy that we don’t show it”. In my view, the threat was not merely directed at the particular request but at Qanstruct “going down [the] path” of making such requests. The threat was really saying that if such requests were to be made now or in the future, Qanstruct should expect industrial action in response.

60    A threat of substantial industrial disruption made for the purpose of undermining the ongoing exercise of a workplace right is to be regarded as a serious infringement of the rights of Qanstruct. In my view, whilst the contravention would have been very serious if it had been accompanied by industrial action and more serious still if that industrial action had been extensive and damaging, the contravention was nevertheless serious and at or about the mid-level of the scale of seriousness for contraventions of s 340(1).

61    The fourth entry took place on 5 March 2014 at the Cheltenham premises and involved both MacDonald and Long. The circumstances of that entry are summarised at [23] above and detailed at [29]-[31] of the primary judgment. As I said at [119] of the primary judgment, by this time part of MacDonald and Long’s purpose in entering Qanstruct’s site was to challenge, defy and break Qanstruct’s new right of entry policy. When MacDonald and Long were told that they would not be permitted to enter the site without having given a notice of entry and producing their entry permits, Long told the Qanstruct manager “you’re on the top of our hit list”. Long and MacDonald then entered the construction site, spoke to a worker and then returned to their vehicle.

62    The response made by Long was not only dismissive but also aggressive. There is no evidence of any loss or damage. Again, I would take into account that Qanstruct’s manager was disrupted from his ordinary duties to some extent and that the work of one worker was interrupted.

63    I would regard these contraventions of s 500 as being more serious than those already addressed. More serious in relation to Long because of the more aggressive nature of the response given by him, but significantly more serious in relation to Long and MacDonald because the conduct was part of a deliberate and orchestrated campaign, which had the express or tacit approval of more senior officials of the CFMMEU, to undermine Qanstruct’s insistence on CFMMEU officials entering its premises in compliance with the FW Act (see primary judgment at [119]-[122]).

64    For those reason the contraventions were objectively more serious than the earlier contraventions including the contravention by MacDonald on the first entry.

65    The fifth entry involving both MacDonald and Long occurred at the Laverton North premises about an hour after the fourth entry. It is summarised at [23] above and a more detailed account is given at [32]-[39] of the primary judgment. In my view, these two contraventions should be regarded as a little less serious than the contraventions on the fourth entry because neither MacDonald or Long gave a dismissive or aggressive response to requests made of them to show their permits. The level of disruption involved, in terms of time taken by Qanstruct managers to deal with the entry as well as the number of workers who were disrupted, was greater than in relation to the fourth entry. Otherwise the purpose of the entry was the same. It was also part of the orchestrated campaign to which I have already referred.

66    In considering the objective seriousness of the contraventions that I have addressed, I have taken into account that the conduct was obviously deliberate. Furthermore, other than for the first occasion on which each of MacDonald and Long entered the relevant premises, I have not regarded the seriousness of the conduct as diminished because it was isolated. Lastly, as I have said already, at least the fourth and fifth entries are to be regarded as part of conduct which was systematic and condoned by senior officers of the CFMMEU. I have not regarded any of the conduct as serious because it involved the contraveners deriving any profit or benefit.

67    I turn then to consider the second category of factors, helpfully summarised in the QLD Infrastructure Case at [104]. That category concerns the particular circumstances of the contravener.

68    None of the CFMMEU, MacDonald or Long have exhibited any contrition or remorse for the contravening conduct. The need for specific deterrence is not thereby diminished. There was some co-operation by the respondents which is relevant to mitigation. Although the resolution of the Commissioner’s claims of contravention required a contested trial, largely, that trial was conducted by reference to competing constructions of the relevant provisions of the FW Act. Once those questions of construction were resolved, the respondents accepted the contraventions alleged against them. There was therefore some level of co-operation, but in practical terms the time at which that co-operation came did little to contain the extent of the litigation. I would give some but only little weight to this consideration.

69    It is accepted that MacDonald and Long are longstanding and experienced officials of the CFMMEU. That circumstance tends to support heavier penalties, although, neither was, at the relevant time, a senior official of that organisation. At the time of the penalty hearing, neither MacDonald nor Long held entry permits for the purposes of exercising rights of entry under the FW Act. That tends towards a lower need for specific deterrence but, as each remain employed by the CFMMEU, specific deterrence remains relevant. The need for general deterrence is unaffected by the loss of the entry permits.

70    In order to effectuate the need for specific deterrence, the penalty that ought to be imposed should be meaningful, in the sense that by reference to the contravener’s capacity to pay, the penalty will have significance. Beyond the fact that MacDonald and Long remain in employment, I have no evidence as to their financial capacity. I can only proceed on the basis that their capacity is that of the average working person and that a meaningful penalty will be a penalty that has significance to an ordinary working person. Evidence before me about the financial means of the CFMMEU demonstrates that even if only the revenue and net assets of the Construction and General Division’s Victorian and Tasmanian Divisional Branch (“Divisional Branch”) is taken into account, the CFMMEU has the financial capacity to pay very substantial pecuniary penalties.

71    The Commissioner relied upon a history of contravening conduct in relation to each of MacDonald, Long and the CFMMEU, not all of which may be characterised as involving prior contraventions committed before the contraventions here being considered occured. Prior contraventions are relevant to the need for specific deterrence. As was said by Mason CJ, Brennan, Dawson and Toohey JJ in Veen at 477-8 the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed because it is relevant “to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law.” An attitude of disobedience of the law demonstrated by the contravener’s prior history of contraventions, will inform the extent of deterrence necessary to address the level of disobedience demonstrated by those prior contraventions. Contraventions of the law committed prior to the instant contravention will, as King CJ explained in R v McInerney (1986) 42 SASR 111 at 113, be:

more cogent if they have been the subject of conviction before the immediate offence. In such cases, the offender has committed the immediate offence notwithstanding the formal judgment and condemnation of the law in respect of the earlier offences and notwithstanding the warning as to the future which the conviction experience implies.

72    In addition to its reliance on prior contraventions of industrial laws, the Commissioner also sought to rely on contraventions committed after the instant contraventions. Contraventions of industrial laws which post-date an instant contravention are unable to reliably say much at all about the contravener’s “continuing attitude of disobedience of the law” at the time of the commission of the instant contravention. Why some weight ought to be given to contraventions of that kind was not explained by the Commissioner. That some weight can be given to contraventions of that kind is suggested by Tracey J in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Footscray Station Case) [2017] FCA 1555 at [48]. I would accept that for the purpose of demonstrating that the instant contravention is not “an uncharacteristic aberration”, a contravention which post-dates the instant contravention may be taken into account. However, to give such contraventions potency in assessing an appropriate penalty for the instant contravention bears the risk that the contravener will be punished twice.

73    MacDonald has the following history of prior contraventions of industrial laws which are set out below chronologically with an indication of when the penalty was imposed and by reference to the dates on which the instant contraventions occurred:

74    MacDonald has admitted contraventions which occurred after the contravening conduct here in question. He has admitted contravening ss 346 and 348 of the FW Act on 6 August 2018, but neither judgment nor penalty has yet been imposed.

75    Long has the following history of prior contraventions of industrial laws:

Long has the following contraventions of industrial laws which occurred after the contravening conduct in this matter:

    contravention of s 417 of the FW Act for contravening conduct on 2 April 2014; and

    contravention of ss 346 and 348 of the FW Act for contravening conduct in April 2015.

76    The CFMMEU, and in particular the Divisional Branch, has an appallingly long history of prior contraventions of industrial laws. The Commissioner relied on a document setting out that prior history, the accuracy of which was not challenged by the CFMMEU. The Commissioner’s analysis shows that the CFMMEU has regularly been involved in the contravention of provisions of the FW Act or the BCCII Act which have attracted pecuniary penalties. The document shows that the CFMMEU has been ordered to pay very significant penalties in relation to those contraventions including many very close to (or at) the maximum available penalty. The document and the updating of it, records over 140 proceedings in which penalties for contraventions of industrial laws dating back to 1999 were imposed. Many if not most of those cases involve multiple contraventions. Over 100 of those cases deal with contraventions that occurred prior to the contraventions here being dealt with. It appears that around 65 of the cases involved the Divisional Branch and around 55 of those cases concerned multiple prior contraventions which occurred prior to the instant contraventions. There can be no doubt that the CFMMEU, through the Divisional Branch, has a significant antecedent history of prior contravening conduct which supports the need for deterrence, particularly specific deterrence. That consideration must loom large in the fixation of appropriate penalties. The CFMMEU’s history of prior contraventions demonstrates a compelling need for specific deterrence. General deterrence is also a matter of significance.

77    In relation to specific deterrence I also take into account that, despite the admissions made by the respondents in relation to the instant contraventions, there is no evidence before me of the CFMMEU taking any compliance action to counsel, educate or inform MacDonald or Long in order to prevent the reoccurrence of contravening conduct by them in the future. Nor is there any evidence before me of any compliance regime ever put in place by the CFMMEU to address its long history of prior contraventions. As I said in the Cardigan Street Case at [85] “[t]he absence of any evidence of compliance systems within the CFMMEU is particularly alarming given the heavily critical comments of the CFMMEU made by this Court in many cases over recent years”. As I also there said at [86] “[a]n organisation faced with a litany of contraventions over an extended period of time, which repeatedly incurs not only significant financial penalties but also pointed judicial criticism, would necessarily put in place measures to change the cultural or normative conduct of the contravening behaviours of its officers and employees” unless such behaviour was condoned by the senior leadership of the organisation. That inference, made in the Cardigan Street Case, is equally available here. All of that is demonstrative of a compelling need for specific deterrence.

78    Before recording my conclusions as to the quantum of the penalties to be imposed, it is necessary to deal with the respondents’ contention that the s 500 contraventions of each of the respondents are, in each case, properly to be characterised as a single course of conduct by that respondent.

79    The respondents contended that the circumstances of each of the entries exhibited considerable legal similarity. It was contended that on each entry MacDonald and Long exercised the same legal right, the right to enter and remain on premises for the purposes of holding discussions with employees; that the right was exercised against the same employer over a narrow date range; and that the exercise of the right was accompanied by the same failure to provide notice of entry and produce entry permits on request.

80    The factual circumstances said to have been common were the dismissive responses given by MacDonald and Long to requests made of them for their entry permits and that MacDonald and Long proceeded onto the construction sites (save on the second entry) despite being warned not to do so. Further, it was contended that each entry was responsive to the adoption by Qanstruct of its new right of entry policy and that the conduct engaged in by MacDonald and Long was engaged in partly for the purpose of testing and defying that new policy. That MacDonald and Long were responsive to an adverse change in the industrial relationship was said by the respondents to unify each unlawful entry. Lastly that the rights sought to be exercised were completely ineffectual was also contended to be a factually common circumstance.

81    I reject those submissions. Whether multiple instances of conduct are to be regarded as a course of conduct raises a question of characterisation. An interrelationship between the legal and factual elements of each of the instances of conduct concerned is relevant, but ultimately the object of the exercise is to ensure that a contravener is not punished twice for what is essentially the same wrongdoing. The nature of the wrongdoing underlying the contraventions of s 500 were that each of MacDonald and Long acted in an improper manner. The impropriety involved with one contravention may well have had shared characteristics with the next. However, as an instance of wrongdoing, I would characterise each impropriety as separate and distinct from the next. Each impropriety is capable of being addressed separately without any danger that the respondents will be dealt with twice for the same wrongdoing. I accept that there is some connection between the s 500 contraventions on the fourth and fifth entries. That connection is provided by the fact that, at least in part, all of that conduct was motivated by the same intent to break Qanstruct’s adherence to its new policy and that the conduct occurred on the same day in a relatively short period of time. In my view, however, that connection does not suffice to demonstrate that the contraventions related to the same wrongdoing. Rather, the connection illustrates an overlap which, if it is to be dealt with, is best dealt with under the totality principle.

82    In relation to the CFMMEU, I also need to address the course of conduct principle and a related contention.

83    As set out at [105] of the primary judgment, the CFMMEU admitted that the conduct of MacDonald and Long was its conduct. In the CFMMEU’s submissions made at the penalty hearing, the CFMMEU accepted that by reason of the admissions made, the CFMMEU is liable, on a derivative basis, for each of the contraventions of s 500 and s 340(1) where MacDonald and Long are the primary contraveners. However, there was some suggestion in contentions later made by the respondents that it was open for the Court to find fewer contraventions on the part of the CFMMEU than the sum of the contraventions on the part of MacDonald and Long. A contention to that effect was made relying on a construction of s 793 of the FW Act which was first considered by Charlesworth J in Director of the Fair Work Building Industry Inspectorate v Robinson [2016] FCA 525. It is not necessary for me to deal with the detail of the argument. Any result in which the Court found that there were fewer contraventions by the CFMMEU than the sum of the contraventions of MacDonald and Long would undermine the admissions that have been made by the CFMMEU. Any contention advocating for that result must necessarily be rejected.

84    That does not mean, however, that in addressing the course of conduct principle, the CFMMEU cannot have the benefit of that principle in relation to its derivative liability for the contraventions of MacDonald and Long, in circumstances where MacDonald and Long themselves are unable to rely on that principle as primary contraveners. In particular I have in mind the fourth and fifth entries where MacDonald and Long entered together in what I found (primary judgment at [120]-[121]) to be an orchestrated attempt to break Qanstruct’s new right of entry policy. Whilst, on each entry, the primary contraveners were each involved in separate wrongdoing based upon conduct personal to each of them, from the perspective of the CFMMEU, the conduct personal to it was the sum of the conduct of both of its officials. The sum of that conduct is, in my view, capable of constituting the same wrongdoing. There is at the least an overlap which should be taken into account in the application of the totality principle. That overlap extends to all of the conduct which occurred on the fourth and fifth entries. That conduct occurred in close temporal proximity and for the same purpose. As the Full Court said in Parker at [274] course of conduct and totality are closely related and should be considered in the context of one another. Some moderation of the penalties to be imposed upon the CFMMEU is appropriate for its contraventions on the fourth and fifth entries. I consider that to be best addressed through the totality principle.

85    I reject the CFMMEU’s contention that all of the conduct of its officials on all of the entries was a single course of conduct for the CFMMEU. I also reject the alternative submission that all of the conduct orchestrated to break Qanstruct’s policy was a single course of conduct for the CFMMEU. An evaluation of the similarities and distinctions as between the different instances of conduct does not, in my view, lead to the characterisation that the sum of the conduct involved no more than one instance of wrongdoing on the part of the CFMMEU.

86    The Commissioner contended that the Court should make a personal payment order in respect of the penalties imposed upon MacDonald and Long. The orders sought have been framed in accordance with the orders made by the Full Court (Allsop CJ, White & O’Callaghan JJ) 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. The orders sought would require MacDonald and Long to pay the penalty imposed by the Court personally and not to seek or encourage the CFMMEU to pay to him any money or provide any financial benefit referable to the payment of the penalty, and additionally, not accept or receive from the CFMMEU any money or financial benefit referable to that payment.

87    The making of a personal payment order is discretionary. It is an unusual order. Ordinarily, no restrictions are imposed upon a contravener obtaining financial assistance from another person to pay a penalty imposed for a contravention of the law. Pecuniary penalties are ordinarily imposed on the basis that the burden or sting needed to address deterrence will have its intended impact despite the capacity for the contravener to obtain assistance in paying the penalty imposed. Non-pecuniary consequences, including reputational damage, attach to a Court’s condemnation when a penalty is imposed. Further, pecuniary assistance for the payment of a penalty will often come at some cost, even if the cost involves a non-pecuniary detriment for the contravener. If the usual approach is to be departed from, some good reason ought to be demonstrated.

88    The Commissioner relied upon a range of reasons to demonstrate the need for personal payment orders to be made against MacDonald and Long. The Commissioner said that there was a complete absence of any contrition or evidence of a change in approach from the respondents. The Commissioner also relied upon what he referred to as the knowing, intentional and repeated nature of MacDonald and Long’s conduct. Additionally reliance was placed on the prior history of contraventions of MacDonald and Long. I appreciate that some support may be found in the authorities suggesting that considerations of that kind may be relevant (Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bendigo Theatre Case) (No 2) [2018] FCA 1211, Tracey J). But, to my mind, if relevant, those considerations are not particularly helpful. They are considerations which address the need for deterrence. Those considerations are relevant to whether a penalty is to be imposed and the extent of the penalty to be imposed. A personal payment order is not addressing the need for a penalty to be imposed but the need for the penalty imposed to be effective in providing its intended sting or burden. As Keane, Nettle and Gordon JJ said in Australian Building Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 at [125] the imposition of a personal payment order is an exercise “of accomplishing the level of sting or burden which the court determines is necessary to be imposed” (emphasis added; and see also at [122]-[123]).

89    The same might be said of the respondents’ contention that a personal payment order is not appropriate. The respondents relied on three matters. First, that neither MacDonald or Long were permit holders at present and therefore no longer have the means of engaging in future impropriety as permit holders. Second, that MacDonald had not been found to have contravened the FW Act since 2014 and that Long had not been found to have contravened the FW Act since 2015. Lastly, the respondents’ relied on the lower level of seriousness of the contraventions in question here, as compared with the contraventions in relation to which a personal payment order was made in the Non-Indemnification Personal Payment Case. Again, all of those considerations are addressing the need for deterrence rather than the need to make the sting or burden effective. To my mind they do not say very much about the need for a personal payment order.

90    The Commissioner did, however, rely on one consideration which to my mind is both relevant and persuasive. The Commissioner relied upon the history of contravention by the CFMMEU through its officials and contended, mirroring the observations made by the Full Court in the Non-Indemnification Personal Payment Case at [40], that that history of contravention effectuated through officials of the CFMMEU “reflects a willingness to contravene the Act and to pay the penalties as a cost of [the CFMMEU’s] approach to industrial relations”. The Full Court continued:

A personal payment order of the kind to which we will come will bring home to [the contravener], and others in his position, that he, and they, cannot act in contravention of the Act knowing that Union funds will always bail him, or them, out.

91    The inference made by the Full Court, which those observations reveal, is that the CFMMEU has accepted that, as a cost of its approach to industrial relations, it will pay the pecuniary penalties incurred by its officials. It seems to me that it was principally that consideration that led the Full Court to the view that a personal payment order was warranted.

92    Consistently with the approach taken by the Full Court in the Non-Indemnification Personal Payment Case, I would infer that the history of prior contraventions by the CFMMEU through the Divisional Branch is demonstrative of an underlying willingness to pay pecuniary penalties imposed upon its officials in relation to the industrial conduct of those officials taken in the course of their employments. The CFMMEU did not resist the inference that the Commissioner sought be drawn against it. Consistently with the existence of such a policy and supportive of its long-standing and systemic nature, the respondent’s acknowledged that the pecuniary penalty imposed on MacDonald in 2013 for his prior contraventions of s 38 of the BCII Act were not personally paid by him. Likewise, a penalty of $6,400 imposed upon Long for a contravention of s 417 of the FW Act (which post-dated the instant contraventions) was also acknowledged as not personally paid by Long.

93    The systemic willingness of the CFMMEU, through the Divisional Branch, to support the unlawful conduct of the officials of the Divisional Branch by paying the pecuniary penalties imposed upon them demonstrates that it is likely that officials of the Divisional Branch will not personally pay for penalties imposed for their contraventions. But that is not all. It also demonstrates that there will be no condemnation or other detrimental consequence inflicted upon those officials by the Divisional Branch.

94    As in the Non-Indemnification Personal Payment Case, the Court is confronted with circumstances which are apt to be characterised as unique. Those circumstances warrant an effective response. The unique circumstances demonstrate that it is likely that, in the absence of a personal payment order, MacDonald and Long will not feel the sting or experience the burden of any pecuniary penalty imposed upon them. To accomplish the intended sting and burden, I consider that personal payment orders should be made in relation to each of the pecuniary penalties I intend to impose on MacDonald and Long.

95    Finally, in assessing the appropriate penalties for the s 500 contraventions, I have had some regard to the judgment of White J in Director of Fair Work Building Industry Inspectorate. I have not done so in the application of the parity principle. I have done so in particular because, broadly speaking and being cautious about the existence of differences, the conduct found to have contravened s 500 in that case, was conduct largely of the same order (some of it more serious) than that which is here being considered for the imposition of a penalty for a breach of s 500 of the FW Act.

96    In that case, White J dealt with a large number of contraventions of s 500 which occurred at various sites in South Australia occupied by Lend Lease. Those contraventions occurred in the course of a considered and deliberate campaign by the CFMMEU to enter Lend Lease construction sites without providing notices of entry. A large number of CFMMEU officials were involved. Conduct common to all of the contraventions was described by White J at [98]-[103]. The commonality included that there were no allegations that Lend Lease suffered quantifiable economic loss or damage; that senior managers were distracted from their normal duties by having to deal with the CFMMEU officials, the period of distraction ranging from being relatively short through to extended periods over several hours; further, workers carrying out their normal duties were distracted from their work by the CFMMEU officials speaking to them; and each case involved what White J considered was an affront to the rights of Lend Lease, in circumstances where the CFMMEU officials involved acted in defiance of the requirements of the FW Act and were dismissive of the objections of Lend Lease management.

97    Further, as I have done, White J regarded the conduct concerned as a subversion of the balancing of the rights and interests sought to be achieved by Part 3-4 of the FW Act (at [103]).

98    All of the penalties imposed by White J on ten individual officials for contraventions of s 500 of the FW Act were imposed at the low range of available penalties, the maximum relevant penalties being the same in that case as are applicable here. The penalties imposed ranged from $1,000 to $3,400 for the individual contraveners and from $20,000 to $25,000 for the CFMMEU. The reasoning of his Honour shows that whilst the seriousness of the conduct as between the different contraventions accounted for some of the disparity in penalties, the main basis for that disparity was the contravener’s prior history of contraventions.

99    The contraveners dealt with by White J included Long, whose conduct is described by White J at [169]. That conduct involved Long entering a construction site and holding discussions with employees, without having provided a notice of entry and without permission in defiance of two managers of Lend Lease. There is no indication of Long having made a dismissive or aggressive response to Lend Lease management’s request. At the time, Long had no prior contraventions of s 500 although a single penalty of $5,000 had been imposed for prior contraventions of ss 38 and 43 of the BCII Act. Two further prior contraventions of ss 38 and 43 were also taken into account. A pecuniary penalty of $2,200 for each of Long’s contraventions of s 500 was imposed. Similar contraventions of s 500 by individuals with no prior history of contraventions resulted in penalties between $1,200 and $1,500 (see [104]-[120] re Mr Grava, [121]-[131] re Mr Kalem, [132]-[137] re Mr Lomax, [176]-[179] re Mr Harrison and [186]-[191] re Mr Stephenson).

100    In terms of its objective seriousness, I have assessed the contravention of s 500 which resulted from the first entry as at the lower end of the scale. That assessment was made largely by reference to the nature of the impropriety and its consequences and the isolated and non-systematic nature of the first contravention. Taking into account MacDonald’s prior contraventions and noting that he had one prior contravention at the time of the first entry which concerned conduct over 3 years earlier, a penalty of $1,800 is appropriate.

101    The CFMMEU’s extensive history of contraventions warrants a penalty being imposed at the very high end of the range of penalties appropriate for a contravention of this level of seriousness. A penalty of $20,000 is appropriate.

102    In terms of its objective degree of seriousness, I have assessed the second entry by MacDonald as at a lower level of seriousness than the first entry. That was principally because MacDonald’s impropriety did not involve defiance of Qanstruct’s warning that he not enter the construction site. His impropriety involved not a lot more than a single dismissive response. The same limited prior history of contraventions, as for the first entry, is applicable. In those circumstances, an appropriate penalty is $500 for MacDonald and, because of its extended history of prior contraventions, $5,000 for the CFMMEU.

103    The third entry was made by Long onto the Cheltenham premises. The conduct in question is the adverse action taken by Long in making the threat. I have assessed the contravention as at or about the mid-level on the scale of serious contraventions of s 340(1). At the time of the third entry, Long had four prior contraventions but only two of those had been the subject of judgment and penalty. Those two contraventions occurred over five years prior to the third entry. In those circumstances, I consider a pecuniary penalty of $6,000 to be appropriate for Long. As for the CFMMEU, and because of its extended history of prior contraventions, a penalty of $35,000 is appropriate.

104    The fourth entry took place at the Cheltenham premises and involved both MacDonald and Long. I assessed the contraventions of s 500 by MacDonald and Long as being objectively serious. Putting aside the threat, they are more serious than the earlier entries because the purpose of MacDonald and Long entering the site was to break Qanstruct’s new right of entry policy. The contraventions were not isolated but part of an orchestrated campaign. By this time, MacDonald had three additional contraventions to those he had on the first entry. Those related to conduct in the prior week and had not been the subject of judgment or penalty. He also had the contraventions resulting from the first and second entries. An appropriate penalty for MacDonald is $4,000. Long’s prior contravening history was the same at the fourth entry as that at the third entry other than the additional contravention resulting from the third entry. I also consider $4,000 to be an appropriate penalty for Long.

105    Given its extended history of prior contraventions, a penalty of $28,000 should be imposed on the CFMMEU.

106    The fifth entry again involved both MacDonald and Long. The relevant circumstances of that entry, including the prior history of contraventions of MacDonald and Long, are essentially the same as for the fourth entry save for the contraventions which occurred on that entry. However, the contraventions occasioned on the fifth entry should be regarded as a little less serious than the fourth entry because neither MacDonald or Long gave a dismissive or aggressive response to requests made of them to show their permits. I would impose a penalty of $3,500 on each of MacDonald and Long. Given its extended history of prior contraventions, a penalty of $24,000 is appropriate for the CFMMEU.

107    Standing back and applying the totality principle, I do not consider any reduction to be appropriate other than in relation to the overlap to which I have earlier referred between the fourth and fifth entries. As a result, I would reduce the penalties I would otherwise have imposed upon MacDonald and Long for each of the fourth and fifth entries by $1,000. For the CFMMEU, the overlap results in a reduction of $4,000 in relation to each of the fourth and fifth entries.

108    Accordingly, the following pecuniary penalties will be imposed:

109    I will make orders and declarations reflective of these reasons.

Associate:

Dated:    21 June 2019