FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070

ORDERS

THE COURT ORDERS THAT:

1.    A pecuniary penalty of $15,000.00 be imposed upon the first respondent.

2.    The penalty so imposed be paid to the applicant not later than 28 days from the date of these orders.

3.    The proceeding be otherwise dismissed.

4.    There be no order as to costs.

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

REASONS FOR JUDGMENT

SNADEN J:

1    The applicant is a large and well-known trade union. It is registered as an “organisation” under the Fair Work (Registered Organisations) Act 2009 (Cth). Broadly speaking, it represents and seeks to advance the industrial interests of (amongst others) employees who perform work in the construction industry. For the purposes of the Fair Work Act 2009 (Cth) (hereafter, the “FW Act”), it qualifies as an “employee organisation” (within the meaning attributed to that term by s 12 thereof).

2    The first respondent operates a construction business headquartered in the ACT. In February 2016, it was the principal in charge of constructing a multi-storey apartment building at premises located at 7 Irving Street, Phillip, ACT (hereafter, “the Site”). It employed a number of people to that end, some of whom were or were eligible to become members of the applicant. At that point in time (February 2016), the Site consisted of at least two distinct areas: a “high-risk zone”, which was secured by means of a fence; and the remainder of the Site, which was outside of that fenced area. The high-risk zone was accessible through a secured entrance that was unlocked by means of “swipe card” access.

3    Within the high-risk zone were located (amongst other things) various temporary buildings, most conveniently referred to as amenities sheds. Another shed—known as the induction shed—was (amongst others) located outside of the high-risk zone. Workers at the site were permitted (and known) to use both—the amenities sheds inside the high-risk zone (hereafter, the “amenities sheds”) and the induction shed outside of it (hereafter, the “induction shed”)—for the purposes of taking their meal breaks.

4    Kenneth Miller and Cameron Hardy were both employees of the applicant’s at the time (February 2016). Each of them was in possession of an “entry permit” issued under s 512 of the FW Act and, for that reason, qualified as a “permit holder” for the purposes of that law.

5    During the morning of Thursday, 4 February 2016, each of Messrs Miller and Hardy gave notice to the first respondent of his intention to exercise at the Site the right conferred upon him by s 484 of the FW Act (namely, to enter it for the purposes of holding discussions with certain of the employees who worked there). Those notices each complied with all of the statutory and regulatory stipulations that the FW Act required of them (about which more is said at [14] below).

6    At approximately 12:45pm on Friday, 5 February 2016, Messrs Miller and Hardy attended at the Site for the purposes of exercising the rights of entry that were the subject of the notices that they had provided. They were met by the second and third respondents, who were employed at the Site as, respectively, the first respondent’s Site Manager and Safety Officer. Upon their arrival at the Site, they were asked to show their entry permits and they did so.

7    What then ensued was a discussion about where within the Site Messrs Miller and Hardy could hold the discussions in respect of which they sought to exercise their right of entry. The second respondent said words to the effect of, “you will hold your discussions here,” apparently motioning (or otherwise referring) to the induction shed. Messrs Miller and Hardy indicated that they preferred, instead, to hold them in the amenities sheds within the high-risk zone. The fourth respondent—the first respondent’s Construction Manager at the Site—arrived on the scene at about that time.

8    Collectively and “[o]n the instruction of” the first respondent, the second, third and fourth respondents refused to permit Messrs Miller and Hardy to pass into the high-risk zone. They insisted that the induction shed qualified as a meal room for the purposes of s 492 of the FW Act and that the discussions that Messrs Miller and Hardy wished to conduct should be conducted there. Messrs Miller and Hardy then left the Site. The precise nature of the refusal is considered in more detail below.

9    The facts stated above are all agreed. The applicant alleges (until recently amongst other things) that they are sufficient to establish that the first respondent contravened s 501 of the FW Act. It seeks declaratory relief and the imposition of a pecuniary penalty in respect of that contravention.

10    By notice dated 10 April 2019, the Australian Building and Construction Commissioner exercised his statutory right to intervene in the proceeding.

11    Until recently, the proceeding involved a much wider array of allegations, including allegations of statutory contravention on other occasions, and allegations levelled at the second, third and fourth respondents personally. It was listed for what the parties estimated would be a four-day hearing, which was scheduled to commence on Tuesday, 11 June 2019.

12    In the week commencing Monday, 3 June 2019, the principal parties reached an agreement in part-settlement of the proceeding. The particulars of that agreement are, of course and properly, not before the court; but, plainly enough, its central feature was that the union would pursue relief in respect of—and the first respondent would admit to committing—only the contravention referred to at [9] above (hereafter, the “Agreed Contravention”). The proceeding against the second respondent was discontinued on Tuesday, 11 June 2019. It proceeded as against the third and fourth respondents; but, ultimately, no relief was sought against them.

13    The agreed course has the intervener’s blessing.

14    There is no controversy amongst the parties about the scheme for which pt 3-4 of the FW Act provides. In Construction, Forestry, Mining, and Energy Union v Safety Glass Pty Ltd [2010] FCA 989 (Tracey J), that scheme was helpfully summarised as follows (at [9]):

Part 3-4 of Chapter 3 of the Act provides for a framework within which union officials may exercise a right of entry to premises occupied by employers. By s 512 [the Fair Work Commission] may issue entry permits to union officials. A union official who holds a permit and who wishes to enter premises must give the employer an entry notice at least 24 hours before exercising a right of entry: see s 487. The entry notice must specify the premises to be entered, the day of entry and the name of the union of which the permit holder is an official: see s 518(1). If the proposed entry is for the purpose of holding discussions with employees the entry notice must contain certain additional details: see ss 484 and 518(3). If these conditions are satisfied the permit holder is entitled to enter the premises: see s 484. It is implicit in s 492(1) of the Act that, once a permit holder has been admitted to an employer’s premises, the employer is required to respond positively to any reasonable request that a particular room be made available in which the permit holder may hold discussions with workers.

15    The most relevant statutory provisions—namely, ss 484, 492 and 501 of the FW Act—are in the following terms:

484 Entry to hold discussions

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

 (a)     who perform work on the premises; and

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

   (c)     who wish to participate in those discussions.

Note 1:     A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.

Note 2:     A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502).

Note 3:     Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold discussions with any person on the premises described in this section.

492 Location of interviews and discussions

(1)     The permit holder must conduct interviews or hold discussions in the rooms or areas of the premises agreed with the occupier of the premises.

(2)     Subsection (3) applies if the permit holder and the occupier cannot agree on the room or area of the premises in which the permit holder is to conduct an interview or hold discussions.

(3)     The permit holder may conduct the interview or hold the discussions in any room or area:

(a)     in which one or more of the persons who may be interviewed or participate in the discussions ordinarily take meal or other breaks; and

(b)     that is provided by the occupier for the purpose of taking meal or other breaks.

Note 1:     The permit holder may be subject to an order by the FWC under section 508 if rights under this section are misused.

Note 2:     A person must not intentionally hinder or obstruct a permit holder exercising rights under this section (see section 502).

501 Person must not refuse or delay entry

A person must not refuse or unduly delay entry onto premises by a permit holder who is entitled to enter the premises in accordance with this Part.

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

16    In light of the facts that are agreed, the court is satisfied that the Agreed Contravention occurred—that is to say, that the first respondent (via the agency of the second, third and fourth respondents) contravened s 501 of the FW Act on Friday, 5 February 2016 by refusing Messrs Miller and Hardy access to the amenities sheds located within the high-risk zone of the Site. The following reasons address what relief should flow from that contravention.

Preliminary matter: amendment of pleadings

17    The proceeding was originally commenced in the Federal Circuit Court. It was transferred to this court on 29 September 2016, whereupon amendments were made to the existing pleadings. As has been stated, the matter as pleaded was much broader than the simplified summary that appears above might suggest. For that reason—and upon reaching the accord that they reached—the parties set about narrowing its scope.

18    On Wednesday, 5 June 2019, the principal parties provided to the court orders that they proposed by consent. Amongst other things, they asked that the court make a declaration that the first respondent had committed the Agreed Contravention, that it issue directions for the preparation and receipt of written submissions concerning what (if any) penalty ought to be imposed in light of it, that it vacate the trial dates, and that it list the matter instead for a hearing on Friday, 14 June 2019 for the purposes of hearing oral submissions directed to that (penalty) question.

19    The court declined to make those orders. They did not expressly enjoy the consent of the intervener. More fundamentally, there was not yet an evidential basis, nor a basis evident from the pleadings, upon which the declaratory relief sought might properly have been granted. The court nonetheless indicated that it could (and would) accommodate the course down which the parties otherwise proposed to traverse. It invited them to narrow the issues in dispute by means of amendments to their pleadings or the filing of an agreed statement of fact.

20    On Thursday, 6 June 2019, the parties responded to that invitation by proposing to do both. As to the former, they asked that the court grant them leave to amend their pleadings, which amendments they proposed to incorporate into separate consent orders, to be handed to the court at the hearing that was then hoped would be scheduled for Friday, 14 June 2019.

21    Later that day, the court indicated that it would not grant leave at large to amend the pleadings. It invited the parties, by way of an alternative course, to narrow the scope of the proceeding by means of their written and oral submissions, and their proposed statement of agreed facts.

22    Orders were then made for the provision of a statement of agreed facts and written submissions concerning what, if any, relief the court should grant in respect of the Agreed Contravention. The trial dates were vacated and the matter was, instead, listed for a hearing on Friday, 14 June 2019 directed to the question of relief.

23    That hearing proceeded as planned. It was preceded by the preparation and receipt of a statement of agreed facts (to which reference is made throughout these reasons) as well as succinct and helpful written submissions directed to the question of the relief that the court should grant in respect of the Agreed Contravention. Those submissions gave voice to the accord that the parties had reached on the question of the respondents’ liability: that is, that the first respondent accepted that it had committed the Agreed Contravention, that the applicant abandoned the remainder of its claims and that the only issue that remained for the court’s consideration was the question of what relief should be granted.

24    At the commencement of the hearing on Friday, 14 June 2019, senior counsel for the applicant handed to the court a minute of orders that were proposed with the consent of the primary parties (and without objection from the intervener). Those orders contained, in list form, descriptions of the ways in which they proposed that their pleadings be amended. They did not make provision for the filing of new pleadings that incorporated those amendments. Indeed, the primary parties sought to be excused from any obligation in that regard. Rather than granting the parties leave to file amended pleadings incorporating the changes that they proposed, what was instead suggested was that the court would simply order that the pleadings were so amended: in other words, that the pleadings would be amended without actually being amended.

25    Without wishing to frustrate what the primary parties have agreed upon as their preferred course, I am not inclined to make the orders that they proposed. Not only are they unorthodox, they are unnecessary: it is clear from the parties’ submissions, and from the statement of agreed facts that they have filed, that the only matter that remains in dispute is the question of what relief ought to issue in respect of the Agreed Contravention. The first respondent admits that it committed the Agreed Contravention. The applicant has abandoned the remainder of its claims. That is sufficient to dispose of all questions of liability in the matter.

penalty

26    Section 501 of the FW Act is a civil remedy provision: FW Act, s 539(1). The court has power under s 546 of the FW Act to impose upon the first respondent a penalty in respect of the Agreed Contravention of up to 300 penalty units. At the time that the Agreed Contravention occurred, a penalty unit was $180: Crimes Act 1914 (Cth), s 4AA(1). The maximum penalty that can be imposed in respect of it is $54,000.00. The parties each submit that the Agreed Contravention should attract the imposition of a pecuniary penalty.

27    Each party nominates a range within which the court should fashion a penalty appropriate in the circumstances of this case. The applicant suggests that it should be set at the “upper end of the lower third”, which I take to mean somewhere between $13,500.00 and $18,000.00. The first respondent suggests that it should be set somewhere between 20 per cent and 30 per cent of the maximum; that is, between $10,800.00 and $16,200.00. The intervener suggests that a penalty of up to 30 per cent of the maximum ($16,200.00) would be appropriate. It can be seen immediately that there is not a lot that separates the parties on this front.

28    In determining whether a penalty in the present case is appropriate—and, if it is, what it should be—the court’s discretion is very broad: A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] FCA 466, [6] (Gyles J). Assuming that a penalty is appropriate, the task of assessing what amount to impose in that respect is one of “instinctive synthesis” that involves the selection of a figure that takes due account of all factors relevant to the particular case: Wong v The Queen (2001) 207 CLR 584, 611 [75] (Gaudron, Gummow and Hayne JJ); Markarian v The Queen (2005) 228 CLR 357, 373-375 [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

29    What those factors are will be case-specific, although the authorities are replete with recurring examples of matters to which regard has properly been had in the exercise of the broad discretion at play. In Australian Ophthalmic Supplies v McAlary-Smith (2008) 165 FCR 560, 580 [91] Buchanan J (with whom, in the result, Gray and Graham JJ agreed), considered those recurring factors and what was an emerging tendency to treat them as “checklists”. His Honour noted:

Checklists of this kind can be useful providing they do not become transformed into a rigid catalogue of matters for attention. At the end of the day the task of the Court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations.

30    The principal (if not only) object to which the court must give effect in setting an appropriate penalty is to deter repetition of the conduct in respect of which it is to be imposed: Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482, 506 [55] (French CJ, Kiefel, Bell, Nettle and Gordon JJ). Deterrence, in that sense, is both specific and general—the court must strive to “…put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act”: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68, 88 [98] (Dowsett, Greenwood and Wigney JJ); Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076, 52,152 (French J). In Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 280 IR 28 (Allsop CJ, White and O’Callaghan JJ), the full court set the task in the following terms (at [19]-[22]):

It is unnecessary to engage in any extended discussion of principle. Of particular significance is the recognition that deterrence (general and specific) is the principal and indeed only object of the imposition of a penalty — to put a price on contravention that is sufficiently high to deter repetition by the contravener and others who might be tempted to contravene the Act: French J in Trade Practices Commission v CSR Ltd [1991] ATPR 41-076 at 52,152 ( TPC v CSR ), cited by the plurality in Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; 255 IR 87 at [55]. Retribution, denunciation and rehabilitation have no part to play.

Relevant factors in the overall assessment of penalty were helpfully listed by French J in TPC v CSR. They have been adopted in many cases. For present purposes, they can be restated as follows: the nature, character and seriousness of the conduct; the loss and damage caused; the circumstances in which the conduct took place; the size of the contravener and its degree of power; the deliberateness of the conduct and the time over which it occurred; the degree of involvement of senior officials or management; the culture of the organisation as to compliance or contravention; and, any co-operation with the regulator and contrition.

The seriousness of the contravention and other features of the conduct which may be seen as relevant to it…find their place in understanding the degree of deterrence that is necessary to be reflected in the size of the penalty: Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) (2018) 356 ALR 389 at [71].

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) 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.

31    The Agreed Contravention warrants the imposition of a pecuniary penalty. I proceed to consider the factors most relevant to what that penalty ought to be. I do so taking account of the parties’ statement of agreed facts and the affidavit of Dennis Milin sworn on 13 June 2019, which the first, third and fourth respondents read.

Nature, character and seriousness of the contravening conduct

32    It is common ground that Messrs Miller and Hardy were both relevantly refused entry onto the Site (or, at least, the high-risk zone part thereof) on Friday, 5 February 2016. The precise nature of the conduct constituting that refusal could be clearer. It is apparent that it was at least in part the product of the discussions that ensued as between Messrs Miller and Hardy (on the one hand) and the second, third and fourth respondents (on the other) when the former arrived at the Site to exercise their rights of entry.

33    What occurred in this case is set out at [20] of the parties’ statement of agreed facts, which relevantly reads:

On the direction of Milin, [the second, third and fourth respondents] refused to permit Mr Miller and Mr Hardy to pass through the high risk fence and repeatedly informed Messrs Miller and Hardy that they could only meet employees in the Induction Shed. [The second, third and fourth respondent] stated that the Induction Shed was a meal room for the purposes of section 492 of the FW Act.

That passage follows [18] and [19] of the statement of agreed facts, which record Messrs Miller and Hardy being told that they were to hold their discussions in the induction shed, and their reply that they did not consider that that was a suitable location within which to do so.

34    The statement of agreed facts then records, at [22], that, “[a]s a result of Milin’s conduct, Messrs Hardy and Miller were refused entry to a part of the Site, being the amenities shed located in the high risk zone.” I read the reference to “Milin’s conduct” as a reference to the conduct attributed to one or more of the respondents by [18]-[20] of the statement of agreed facts. The following paragraph ([23]) records that, by reason of that refusal, Messrs Miller and Hardy “…were refused entry onto premises within the meaning of the FW Act”.

35    The parties effectively treat the high-risk zone as though it amounted to premises in its own right. That is consistent with the meaning that the FW Act attributes to “premises”: FW Act, s 12.

36    The conclusory language employed by the statement of agreed facts is problematic on a number of levels. The first concerns the use of the phrase “refused to permit” in [20] of the statement of agreed facts. Section 501 of the FW Act is engaged where a permit holder is refused entry onto premises that he or she is entitled to enter in accordance with pt 3-4 of the FW Act. It is not engaged merely where an occupier refuses to grant a permit holder his or her (or its) permission to enter. An occupier’s permission is irrelevant. If a permit holder is entitled to enter premises in accordance with pt 3-4 of the FW Act, his or her entitlement to do so is conferred by the Act, not by any permission granted to that end by the occupier.

37    Yet, plainly enough, the parties in this matter are as one in submitting—and, in light of that unity of view, I accept—that, insofar as they were refused permission to pass into the high-risk zone and were told, instead (and repeatedly), that they were only permitted to hold their discussions in the induction shed, Messrs Miller and Hardy had their entry to the high-risk zone refused in contravention of s 501 of the FW Act. There was, then, something about that refusal to grant permission or that repeated exhortation to hold the discussions in the induction shed (or both) that gave the exchange that character or consequence. What, exactly, that was is not addressed in the statement of agreed facts. That, obviously enough, makes it difficult for the court to assess the nature, character and seriousness of the contravening conduct.

38    It is not clear that the “refus[al] to permit” Messrs Miller and Hardy to pass into the high-risk zone was the product of anything more than a verbal indication (or verbal indications) that they were not permitted to venture into that area and were, instead, permitted only to conduct their meetings in the induction shed. It is not even clear that the first half of that equation—that they were not permitted to venture into the high-risk zone—was stated expressly. It may be that Messrs Miller and Hardy asked for permission and were told that it wasn’t granted; it may be that they requested a “swipe card” in order that they could pass into the high-risk zone but were told that one would not be provided; it may be that they sought to pass into the high-risk zone (perhaps using somebody else’s “swipe card”) and were physically prevented from doing so. It’s simply not possible to know what form that refusal of permission assumed.

39    What is clear from [20] of the statement of agreed facts is that Messrs Miller and Hardy were repeatedly told that they could hold their meetings “only” in the induction shed. In that sense, whether they were also told expressly that they were not permitted to pass into the high-risk zone doesn’t much matter: if the point wasn’t made in terms, it was clearly implicit in what was said (repeatedly) about the induction shed. In the absence of any evidence of any other conduct constituting it, I proceed upon the assumption that the “refus[al] to permit” to which [20] of the statement of agreed facts summarily refers was the product of nothing more than that Messrs Miller and Hardy were told that they were “only” permitted to hold their discussions in the induction shed.

40    That being so, the Agreed Contravention lay as much in what was said as in what was not said. By itself, to say to a person “you can’t go in there” is not to refuse them entry onto premises. It may—and, when uttered by or on behalf of an occupier, almost certainly will—amount to a refusal to grant permission to enter; but, as has already been stated, that isn’t the same thing. When they attended at the Site on Friday, 5 February 2016, Messrs Miller and Hardy didn’t require the respondents’ permission to enter onto the Site (and, more particularly, into the high-risk zone). Subject to their complying with the requirements of pt 3-4 of the FW Act, they were authorised to that end by reason of s 484.

41    For an occupier to “refuse” a person’s entry onto premises requires one or more of three things. First, refusal can manifest in deliberate physical obstruction: that is, the creation of a physical barrier that is calculated to and does render safe access to premises beyond what is reasonably achievable. A business targeted by protestors, for example, might refuse their entry onto its premises by hiring security personnel to physically prevent them from entering. Second, it can assume the form of a threat, explicit or implicit, that is calculated and sufficient to convince a person to abandon his or her desire to enter premises for fear that any attempt to do so would be met with physical resistance. A bouncer at a nightclub, for example, might (on behalf of the occupier) refuse a person’s entry without saying anything more to them than, “you can’t go in there”. The refusal there lies in what is unsaid—“I will stop you if you try”—which will usually arise implicitly as a product of the speaker’s ostensible authority (and perhaps, in that example, the appearance of physical superiority and a willingness to deploy it). Third—and in the right circumstances—entry onto premises might be said to have been refused by reason of an occupier’s refusal to do what is reasonably necessary in order that entry might be gained. A restauranteur who turns away a health inspector by refusing to unlock the front door to his or her restaurant, for example, might be understood to have refused the inspector entry onto the restaurant premises. These examples, obviously enough, are dependent upon all manner of variables.

42    The paucity of information in the statement of agreed facts in this case means that it is difficult to know into which of the three categories the exchange that took place on Friday, 5 February 2016 fell. In light of the assumption stated at [39] above, the first category can be immediately disregarded. There is no reason to think—much less any evidence to prove—that the Agreed Contravention involved (or was associated in any way with) the creation of a physical obstruction. It might have fallen within either or both of the remaining categories—that is to say, it might have involved a threat of the relevant kind or the denial of relevant assistance.

43    Again, it is difficult to know. Insofar as the representation that Messrs Miller and Hardy were only permitted to conduct their discussions in the induction shed was advanced as an exhortation that they were not at liberty to conduct them anywhere else at the Site, that was plainly incorrect. They were authorised by the FW Act to enter into the high-risk zone for the purposes of holding their discussions. They were not restricted to holding them “only” in the induction shed. That they lacked the respondents’ permission to enter the high-risk zone was irrelevant. Insofar as their entry was refused by no more than what was said to them about where they should (and should not) hold their discussions, that must be because those representations were sufficient to convince Messrs Miller and Hardy either that they would not be able to gain entry into the high-risk zone or that any attempt on their part to do so would be resisted. In other words, those representations must have carried with them either or both of two imputations: namely, that any attempt to conduct discussions within the high-risk zone would be met with physical opposition, or that the respondents would not provide the assistance (presumably in the form of the provision of a “swipe card”) that they would need to that end. Although the statement of agreed facts leaves open the possibility that the refusal of entry was the product of other conduct attributable to the respondents, it is simply not possible to know what that other conduct might have been (or if there was any). I proceed on the basis that the relevant refusal of entry was as I have described it, however speculatively, in this paragraph: that is, that it was the product of what Messrs Miller and Hardy were told about where their discussions could, should and would be held; and, more precisely, that it was a consequence of the attachment to that representation of either or both of the imputations that are described above. It would have been preferable for the statement of agreed facts to have made that clear.

44    There is another difficulty that arises from the loose manner in which [20] of the statement of agreed facts has been drafted. It refers to the relevant refusal having been given effect to “on the direction of” the first respondent. No human agent is identified as the source of that direction. Clearly, it must have come from somebody who had authority to direct each of the second, third and fourth respondents. Who that is or might have been is, again, left unexplored.

45    Counsel for the intervener made that observation during his oral submission. In response to it, senior counsel for the first, third and fourth respondents suggested that what appears at [20] of the statement of agreed facts was “…perhaps an inelegant and rather awkward reference to the admitted fact that each of the three named persons – all of whom were senior managers – were acting with the authority of Milin.” Urging that the court not speculate as to whether the relevant refusal was attributable to some human agent other than the second, third or fourth respondents, senior counsel submitted that the case, as pleaded, went no further than those individuals (that is, it relevantly attributed to the first respondent only the conduct of the second, third and fourth respondents).

46    With respect, the pleadings do not assist at this juncture. They identify the material facts necessary to establish the legal conclusion that conduct was engaged in in contravention of s 501 of the FW Act. The existence of a direction of the sort to which [20] of the statement of agreed facts refers is not material in that respect: whether there was a contravention turns only upon whether or not Messrs Miller and Hardy’s entry onto the Site was refused, not whether any such refusal was the product of a direction given to those by whom it was effected. The fact that there is no reference in the pleadings to the existence of a “direction” does not put it (if it was given) beyond the scope of what the court can and should consider in fashioning a penalty appropriate in the present circumstances.

47    If, as the statement of agreed facts unambiguously states, there was a direction given to the second, third and fourth respondents from above that they should refuse Messrs Miller and Hardy’s entry onto the Site, that is a fact that properly informs the court’s assessment of the objective seriousness of the conduct that it is agreed was engaged in in contravention of s 501 of the FW Act. It is one thing for managers at the Site to wrongly advance a particular position; quite another for them to have done so pursuant to a direction from a more senior source. The penalty that the court imposes should reflect that objective seriousness.

48    That leaves the court in a difficult position. It is apparent (which is to say that I accept) that there was a direction given in this case to the second, third and fourth respondents; but it is not clear who gave it. The intervener invited the court to infer that it had come from the first respondent’s managing director, Mr Milin. I don’t consider it open to draw such an inference (even in the absence of evidence from him that he was not its source). In the final analysis, though, it is unlikely to make any material difference: the existence of a direction, from a level of the first respondent’s management that was more senior than that of the other respondents, that the latter should refuse Messrs Miller and Hardy’s entrance onto the Site on Friday, 5 February 2019 is a matter to which I have had regard in setting the penalty that will be imposed.

49    There are other aspects of the conduct amounting to the Agreed Contravention that warrant comment (and to which I have had regard in setting an appropriate penalty), namely that:

    the respondents advertised to the workers at the Site that officials of the applicant would be in attendance on Friday, 5 February 2016 for the purposes of holding discussions in the induction shed with anybody who wished to participate in them—there was, in that sense, no attempt by the respondents to prevent the applicant from holding discussions at all (as opposed to holding them within the high-risk zone);

    Friday, 5 February 2016 was only a short time after publication of a report from the Royal Commission into Trade Union Governance and Corruption, which was known to have generated “strong negative feelings” toward the applicant at the Site; and

    Messrs Miller and Hardy were told to use the induction shed because the respondents were concerned that those “strong negative feelings” might translate into confrontations that were preferable to be avoided (and that could be avoided by their steering clear of the high-risk zone).

50    Before concluding on this topic, mention should be made of the significance of the rights that the applicant’s representatives were denied on Friday, 5 February 2016. In Construction, Forestry, Mining and Energy Union v Safety Glass Pty Ltd [2010] FCA 989 (Tracey J), the court observed (at [18]):

The Act provides a detailed scheme to regulate the exercise, by union officials, of their right to enter an employer’s premises. Various restrictions are placed on the right of entry to minimise inconvenience to the employer or disruption to productive work. Provided, however, that the right of entry is exercised in accordance with the provisions of the Act, union officials are entitled to unimpeded access to business premises for prescribed purposes. This is an important right which enables unions to recruit members and protect the industrial interests of their members.

51    I adopt his Honour’s observations. The rights that Messrs Miller and Hardy were denied on Friday, 5 February 2016 are not to be dismissed as administrative or in any way trivial. They are (and were) significant. Their frustration is serious. None of the parties suggests otherwise.

Deliberateness and involvement of senior management

52    It is clear that the Agreed Contravention involved senior management. Senior counsel for the applicant described the second, third and fourth respondents as the “most senior” managers at the Site. Certainly, their titles would indicate as much; but the evidence doesn’t permit a clear finding one way or the other. Regardless, there was no debate—nor room to doubt—that the second, third and fourth respondents qualified as the first respondent’s senior management.

53    It is at this juncture that the language of [20] of the statement of agreed facts again assumes some significance. As I have found, the second, third and fourth respondents did what they did on the direction of somebody even more senior. Who that was is unknown; but the fact that the policy approach that resulted in the Agreed Contravention was one that came from as high as it appears to have is cause for some concern. As I have stated above, it is a circumstance that informs the assessment of what penalty is appropriate in the present case.

54    Equally, there is at least some basis for concluding that the conduct of the respondents was deliberate, in the sense that they knew that refusing Messrs Miller and Hardy’s entry onto the Site on Friday, 5 February 2016 would be unlawful but chose to effect it anyway. In his affidavit, Mr Milin deposed to training that “Milin’s Site Managers” and “senior staff” had received in respect of rights of entry under pt 3-4 of the FW Act. That training concerned (in the case of the “Site Managers”) the use of a right of entry “app” apparently developed by the Master Builders Association. Additionally, the intervener (or a representative or representatives of a previous incarnation of the Commission that he heads) delivered on-Site training to Milin’s “senior staff” about “…the rules and responsibilities surrounding right of entry.” In each case, the training pre-dated the events of Friday, 5 February 2016. Although it is not clear precisely to whom the training was provided, it is sufficiently clear—and I readily infer—that it was provided at least to the second, third and fourth respondents.

55    Additionally, the fourth respondent had, prior to Friday, 5 February 2016, attended a Master Builders Association seminar on “…rules and responsibilities surrounding right of entry.”

56    It is apparent that the second, third and fourth respondents had, at least collectively, some appreciation for the effect of s 492 of the FW Act. They referred to it expressly when indicating to Messrs Miller and Hardy why the discussions that they were there to conduct could “only” occur in the induction shed.

57    The intervener submits that, on the strength of that evidence—and from the absence of any evidence from any of the second, third or fourth respondents as to why he did what he did—the court should infer that each of them knew that the effect of s 492(3) of the FW Act was that Messrs Miller and Hardy were authorised to venture into the amenities sheds within the high-risk zone. The first respondent, conversely, invites the court to find that each of them was acting “…under an erroneous assumption about [his] right to determine the area…” in which the applicant’s representatives should hold their discussions.

58    The difficulty with the first respondent’s contention is that there’s no evidence to support it. Not only that, there is evidence—namely, the evidence about right of entry training to which reference is made above—from which it can be inferred that each of the second, third and fourth respondents understood that Messrs Miller and Hardy were entitled to access to the high-risk zone on Friday, 5 February 2016 (that is to say, was not “under an erroneous assumption” on that front). For reasons that have not been explained, none of those individual respondents has given evidence to substantiate that what he did, he did in error. That being so, an inference that he (in each case) understood what Messrs Miller and Hardy’s rights of entry were can more readily be drawn (consequent upon an antecedent inference that, had he given evidence, it would not have assisted): Jones v Dunkel (1959) 101 CLR 298, 308 (Kitto J), 312 (Menzies J), 320-321 (Windeyer J); Kuhl v Zurich Financial Services (2011) 243 CLR 361, 384-385 [63]-[64] (Heydon, Crennan and Bell JJ, French CJ and Gummow J, in dissent, not addressing the point); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466, 489-490 [76] (Weinberg, Bennett and Rares JJ). I accept the submission of the intervener in that sense. Acting on it, I also accept the more summarily-phrased submission of the applicant that the first respondent’s conduct was deliberate.

Contrition and cooperation

59    The first respondent, by the evidence of its managing director, Mr Milin, has acknowledged its contravention and expressed its regret that it occurred. It has not been repeated. Indeed, the first respondent’s current relationship with the applicant was described as “cooperative”; a circumstance that Mr Milin “welcome[d]”.

60    The first respondent has accepted an invitation from the intervener to have its management team attend a training session directed to the rights and obligations of occupiers and employers under pt 3-4 of the FW Act.

61    The first respondent has also, of course—by the admission that is at the heart of the parties’ accord—avoided the need for a lengthy trial on the question of liability.

62    All of these factors inform the degree of contrition that the first respondent has demonstrated and, in turn, are relevant to an assessment of what is an appropriate penalty in the circumstances. The applicant invites some scepticism on account of the lateness of the first respondent’s admission that it engaged in the Agreed Contravention. The first respondent’s admission, it says, should be seen as nothing more than a recognition of the inevitable. The intervener also submits that any penalty discount that it might ordinarily warrant should be discounted because of that lateness.

63    It is appropriate for the court to acknowledge that the first respondent has exhibited appropriate contrition for its conduct. I accept the submission of the intervener that the Agreed Contravention could fairly be described as an “aberration”. It is not open to the court to reject the first respondent’s evidence as to its contrition; nor to find that it has made the admissions that it has for any particular reason. Clearly, it would have been preferable for the admissions to have been made sooner than they were and the penalty that I will impose in respect of the Agreed Contravention might well have been smaller had that occurred; but the first respondent is entitled, all the same, to recognition (in the form of a discount on the penalty that would otherwise be appropriate) for the steps that it has taken.

Cultural considerations

64    The first respondent led evidence to show that the Agreed Contravention was properly described as an “aberration”. I need not repeat that evidence here. I accept that it was an isolated event, and that the first respondent otherwise has in place an adequate system to ensure its compliance with pt 3-4 of the FW Act and a good, overall culture of compliance.

65    I also accept that the relationship between the applicant and the first respondent is both improved and cooperative.

66    There was a wealth of evidence led as to what might be described as the first respondent’s level of community engagement. That evidence was led in aid of the submission that the first respondent does not want for incentive to conduct itself lawfully, and that it “…does, and will continue to, direct its resources responsibly for the benefit of the community.”

67    I accept that submission. It is appropriate to have regard to the many and varied positive contributions that the first respondent makes (and, it appears, will continue to make) to the construction industry and the ACT community more broadly.

Loss and damage caused

68    Given the nature of the rights that were sought to be exercised, it is not surprising that there is no evidence of any loss or damage arising from the Agreed Contravention. This factor has no bearing on the penalty to be imposed.

Size and financial position

69    The first respondent accepts that it is “well-resourced”. There is no suggestion that it lacks the means to sustain the imposition of a penalty; nor that its contravention should be excused (or partially excused) on account of its size.

Prior contraventions

70    The first respondent has not previously (nor since) been found to have contravened any of the requirements for which pt 3-4 of the FW Act provides.

Conclusions

71    On the strength of the observations above, I consider that the requirements of deterrence—both specific and general—and the circumstances of this case more generally, warrant the imposition upon the first respondent of a pecuniary penalty in the sum of $15,000.00.

Declaratory relief

72    The parties are agreed that the court should grant declaratory relief in respect of the Agreed Contravention in the following terms, namely that:

Milin Builders Pty Ltd contravened s.501 of the Fair Work Act 2009 by, through its employees, refusing Messrs Hardy and Miller entry to part of the Trilogy Apartment Building Site in Phillip ACT, namely a meal room, on 5 February 2016.

73    The court’s power to grant declaratory relief has its origins in the Court of Chancery. Section 50 of the Chancery Procedure Act 1852 (UK) enabled the making of declaratory decrees in circumstances where there existed a right to consequential relief that, if requested, might have been granted: see Barraclough v Brown [1897] AC 615, 623-624 (Lord Davey) and the cases to which his Lordship there refers.

74    This court’s power to grant declaratory relief—to the extent that it isn’t inherent (see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 (hereafter, “Ainsworth”), 581 (Mason CJ, Dawson, Toohey and Gaudron JJ); and Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 288-289 (Callinan J))—is found in s 21 of the Federal Court of Australia Act 1976 (Cth), which provides:

21 Declarations of right

(1)    The Court may, in civil proceedings in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.

(2)     A suit is not open to objection on the ground that a declaratory order only is sought.

75    That power is plainly wider than the one for which s 50 of the Chancery Procedure Act 1852 (UK) provided. This court, in proceedings relating to any matter in which it has original jurisdiction, has the power to make declarations in respect of any right, regardless of whether or not it is one in respect of which any other remedy is or could be sought. “Right” is to be understood in its broadest sense, covering privileges, powers and immunities: Sankey v Whitlam (1978) 142 CLR 1, 23 (Gibbs ACJ).

76    Declaratory relief, like any final relief, is granted by way of the determination of a justiciable controversy. It is available even where, as here, the facts said to warrant the relief are agreed and the parties consent to its being granted: Australian Competition and Consumer Commission v MSY Technology Pty Ltd (No 2) (2011) 279 ALR 609, 612-620 [9]-[48] (Perram J); Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378, 387 (Greenwood, Logan and Yates JJ).

77    The granting of declaratory relief involves an exercise of judicial discretion: Ainsworth, 581 (Mason CJ, Dawson, Toohey and Gaudron JJ); Cruse v Multiplex Ltd & Ors (2008) 172 FCR 279 (hereafter, “Cruse”), 299 [55] (Goldberg and Jessup JJ, Gray J dissenting but not on that point); McLeish v Faure (1979) 25 ALR 403, 414-415 (Sweeny, Evatt and Northrop JJ). That discretion, it has been said, should “…be exercised ‘sparingly,’ with ‘great care and jealousy,’ with ‘extreme caution,’ [and] with ‘the utmost caution’” and, at all events, with “…a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making”: Ibeneweka v Egbuna [1964] 1 WLR 219, 224-225 (Viscount Radcliffe, Guest and Upjohn LLJ); Ainsworth, 596 (Brennan J).

78    Ordinarily, it will not be appropriate to grant declaratory relief unless it can be said that there is some utility in doing so: Ainsworth, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ); Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591, 613 [52] (Gaudron J); Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Limited (No 2) [2017] FCAFC 99, [3] (Allsop CJ, Middleton and Davies JJ); Australian Competition and Consumer Commission v MSY Technology Pty Ltd & Ors (2012) 201 FCR 378, 388 [35] (Greenwood, Logan and Yates JJ); Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406, 414 (Lockhart J, with whom Spender and Cooper JJ agreed); Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 (“Tobacco Institute”), 99 (Sheppard J); Ogawa v Attorney-General (No 2) [2019] FCA 1003, [50] (Logan J).

79    Such utility might be thought to be lacking in circumstances where other relief is granted in respect of the conduct that is sought to be made the subject of a declaration: Australian Competition and Consumer Commission v Francis (2004) 142 FCR 1 (hereafter, “Francis”), 33 [98] (Gray J); Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374, [45] (Collier J). In other circumstances, declaratory relief would serve no purpose (or, at least, would be undesirable) unless granted with other, consequential relief: see, for example, Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286, 307 (Barwick CJ and Jacobs J).

80    For a time, there was debate in this court as to whether a declaration that did nothing more than state that conduct engaged in by a respondent was engaged in in contravention of a statute could fairly qualify at all as a “declaration of right”. Gray J, in particular, was very clearly of the view that it could not: Francis, 33 (Gray J); Carr v Higgins Coatings Pty Ltd (2005) 148 IR 201 (hereafter, “Carr”), 206 [21] (Gray J). In the latter case, his Honour was asked—as I am in this case—to record, by means of a declaration, that past conduct engaged in by a respondent had been engaged in in contravention of a particular statutory injunction. His Honour observed (at 205-206 [20]-[23]):

I have great difficulty accepting that a declaration which does nothing more than record a[n] historical event is properly described as a declaration of right. A declaration of right settles a state of dispute between parties, by declaring what the rights of one or other or both of them are, and enables them to conduct their relations in the future on the basis that their rights are thereby established. In essence, it is a remedy looking towards future conduct, rather than at past conduct.

…I am aware that it has become a practice under the Trade Practices Act 1974 (Cth) (the Trade Practices Act) for applicants to seek, and for the Court to make, declarations that appear to do nothing other than reflect the fact that past conduct amounts to a contravention of provisions of that Act. Declarations in that form have often been made in cases in which the option of a penalty has not been available, but have also been made in cases where a penalty is an option, and even in cases in which penalties have been opposed. It is perhaps too late to protest about that practice under that Act, it having been sanctioned by the High Court of Australia, at least impliedly, in Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 at [89]-[90] per Gummow, Hayne and Heydon JJ, by the failure of the High Court to condemn the making of declarations of that kind, even though it condemned the particular, rather vague, form of the declarations that had been made in that case.

Recent cases under s 187AA of the Workplace Relations Act suggest that the practice is threatening to spill over from the Trade Practices Act to that area. There have been a number of cases in which judges have made declaratory orders where they have not imposed penalties under s 187AA. In no case, so far as I am aware, has any judge engaged in discussion in reasons for judgment about whether the making of such a declaration is appropriate.

In my view, it is not. Counsel for the applicant contends that the making of a declaration would send the right message to others that the law is being enforced. I am not sure that a case such as this would gain such notoriety that others would inevitably learn what they would learn from reading s 187AA of the Act, namely that it is unlawful to make payments to employees who are engaging, or have engaged, in industrial action.

81    The above passage contains two observations with which, with respect to his Honour, I am unable to agree. First, I see no reason why a binding declaration of right might be limited to future conduct (if that is what his Honour was suggesting). A declaration of right is a statement made by a court that resolves a justiciable controversy by recording the existence (or otherwise) of a legal state of affairs: Zamir and Woolf, The Declaratory Judgment (Sweet & Maxwell, 4th ed, 2011), 1 [1.02]. Such a resolution, although not enforceable in the way that coercive judgments are, is nonetheless res judicata. That being so, there is no reason why the particular state of affairs in any given case couldn’t pertain to past conduct. A controversy about whether or not particular conduct was engaged in in contravention of a statute strikes me as a good example.

82    Second, I don’t consider that the High Court, in Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 (hereafter, “Rural Press”), went so far as to “sanction” the granting of declaratory relief that serves no purpose other than to record that a party’s past conduct was engaged in in contravention of a statute. That, there is no doubt, is the course that was ultimately taken in that case. But there are two respects that ought to be borne in mind that might serve to explain why. The declaratory relief made at first instance was not challenged, neither in the full Federal Court nor the High Court. Further, the revisions that the High Court made to those orders were made because of circumstances peculiar to that case. Gummow, Hayne and Heydon JJ observed (at 92 [95]):

…there is some utility in the particular circumstances of these appeals in making the declarations to which the parties consent. The degree to which the Commission succeeded has changed from stage to stage of these proceedings, and it is convenient to have set out in the declarations not only the basis for the primary liability and accessorial liability found, but also the basis for the penalties ordered as it must now be understood.

(emphasis added)

83    The observation in the immediately preceding paragraph is, in any event, now moot. In Cruse, the majority (Goldberg and Jessup JJ) said (at 298 [53]) that there could be:

…no objection in principle to the making of a declaration where the purpose and utility thereof is formally to record the basis upon which the proceeding in question has been resolved (whether by adjudication or otherwise).

The court went on to make declaratory orders that did little more than state that one of the respondents had engaged in conduct prohibited by statute. The other member of the bench was Gray J, the terms of whose dissent (at 285 [18]) might readily be imagined (but need not here be set out).

84    Even prior to Rural Press, there was at least some High Court authority supportive of the proposition that declaratory relief was available to record simply that past conduct contravened a statute: Australian Softwood Forests Pty Ltd v Attorney General (NSW); ex rel Corporate Affairs Commission (1981) 148 CLR 121, 125 (Gibbs CJ), 136 (Mason J, with whom Stephen J agreed), 137 (Murphy J), 144-145 (Wilson J). There was authority for the proposition in this court prior to Cruse: Tobacco Institute, 94, 98, 100-101 (Sheppard J), 106 (Foster J), 107, 110 (Hill J); Australian Competition and Consumer Commission v Chen (2003) 132 FCR 309, 319 [35] (Sackville J).

85    Subject to other circumstances that might inform an exercise of the court’s discretion, I accept—indeed, am bound to observe—that the court has the power to grant declaratory relief that does nothing more than state that a respondent’s prior conduct was engaged in in contravention of a statute. Like Gray J, I do so with difficulty and scepticism; all the same acknowledging that this court makes orders of that nature with a frequency that reflects a view that is “firmly entrenched in history”: Justice Robert French, ‘Declarations – Homer Simpson’s remedy – is there anything they cannot do?’ [2007] FedJSchol 24, [50].

86    Attention should turn, then, to whether the court should make such an order in this case. That calls for some analysis of whether doing so would have any practical utility.

87    In Francis, Gray J confronted what all three members of the full court in Tobacco Institute had said about why an exercise of the court’s power to declare that past conduct contravened a statute was appropriate in that case. His Honour observed (at 35-36 [108]-[110]) that:

…the notion of a declaration as a vindication of a public right is difficult to grasp. The right of a member or members of the public not to be misled or deceived by conduct to which s 52 of the Trade Practices Act applies is apparent on the face of the section itself. The right might be said to be vindicated if some penalty could be imposed upon the contravener of the section. It is hard to see how it could be vindicated by the mere recording of the conclusion that a contravention had occurred. It is not clear why the expression of that conclusion in a summary form in a declaration should be considered to be more capable of vindicating the public right than the detailed findings expressed in published reasons for judgment.

Since the Tobacco Institute case, declarations have been made in a very great number of cases involving contraventions of the Trade Practices Act, particularly s 52. In most of those cases, the peculiar circumstances present in the Tobacco Institute case have been absent. Declarations in summary form have often been made by single judges who have expressed clear views in their reasons for judgment as to the nature of the misleading or deceptive effect of the conduct concerned. These cases have generated very little discussion as to the rationale for making a declaration. It has been said that the reason is to mark the Court’s disapproval of the conduct concerned. See, for example, Australian Competition and Consumer Commission v Chen [2003] FCA 897; (2003) 132 FCR 309; [2003] FCA 897 at [36]. Again, I have difficulty with this as a reason for granting a declaration. The function of the Court is to find the facts and apply the law to them, to determine whether a contravention of a statutory provision has occurred. It is not to express its opinion of the quality of the conduct, by the use of adjectives indicating that opinion. In any event, adjectives of that kind are never used in the declarations concerned. The question is not whether the judge approves, or disapproves, or has no opinion either way.

The process of an applicant seeking, and the Court granting, a declaration, if the Court finds that a contravention has occurred, seems to have become mechanical, at least in cases under the Trade Practices Act. The fashion seems to have been established. In the case of the applicant in the present case, it seems to have become something of a fetish.

88    Those observations followed earlier comments (the disapproving undertones of which were no less thinly disguised) about this court’s tendency to grant relief of the relevant kind “…as a matter of course, and usually without discussion as to the adequacy of the terms of the declaration sought, or as to the necessity for one to be made”: Francis, 33 [98] (Gray J).

89    His Honour then proceeded, however reluctantly, to make a declaratory order of precisely the kind of which he’d been critical. He did so despite being of the view that that course would be “totally pointless”: Francis, 36 [110] (Gray J).

90    With respect—and appreciating why he took the course that he did—I cannot reconcile his Honour’s observations with the order that he made. Declaratory relief ought not to be granted in circumstances where granting it would be pointless (much less totally pointless). In Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591, Gaudron J (at 613 [52]) said:

…a declaration cannot be made if it “will produce no foreseeable consequences for the parties.” That is not simply a matter of discretion. Rather, a declaration that produces no foreseeable consequences is so divorced from the administration of the law as not to involve a matter for the purposes of Ch III of the Constitution. And as it is not a matter for those purposes, it cannot engage the judicial power of the Commonwealth.

See also: Ainsworth, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ). Her Honour’s observations have been applied by this court many times: Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Limited (No 2) [2017] FCAFC 99, [3] (Allsop CJ, Middleton and Davies JJ); Yau's Entertainment Pty Ltd v Asia Television Ltd (2002) 54 IPR 1, 15-16 [74] (Hely J, with whom Sundberg and Finkelstein JJ agreed); De Belin v Australian Rugby League Commission Limited [2019] FCA 688, [380] (Perry J); Animals’ Angels e.V. v Secretary, Department of Agriculture [2014] FCA 398, [24] (Edmonds J); Leonie’s Travel Pty Limited v International Air Transport Association (No 2) [2009] FCA 646, [7] (Moore J).

91    Over the last three decades, a strain of reasoning has developed (primarily in this court) that effectively distinguishes proceedings that are instituted to vindicate statutory rights or norms of general application from other proceedings. Cases of the former kind have apparently been thought more amenable to declaratory relief because relief of that nature serves (or, at least, might serve) to record the court’s disapproval of conduct that contravenes a public right, or because it otherwise has (or might have) some wider educative effect. In Australian Competition and Consumer Commission v Midland Brick Company Pty Ltd (2004) 207 ALR 329, Lee J observed (at 333 [21]):

[I]t may be said that there is some utility in declaring contraventions of the [Trade Practices] Act to have occurred in order to define and publicise the type of conduct that constitutes a contravention of the Act and to set out clearly the foundation on which the consequential orders by way of injunction and pecuniary penalty, including those based on accessorial liability, are grounded…

92    The majority in Cruse endorsed those obligations (at 298 [53]). In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (“Cardigan Street Case”) [2018] FCA 957 (Bromberg J), the court applied that reasoning (at [46]-[47]):

The educative value of declarations in civil remedy proceedings under the FW Act has been remarked on by the Court on many occasions: Cruse v Multiplex Limited (2008) 172 FCR 279 at [53]-[59] (Goldberg and Jessup JJ); Fair Work Ombudsman v Al Hilfi [2015] FCA 313 at [22] (Besanko J).

The proposed declarations are appropriate to formally record the basis upon which the proceeding has been resolved.

93    In Australian Competition and Consumer Commission v Chaste Corp Pty Ltd (in liq) [2005] FCA 1212 (Lander J), the court observed (at [150]):

When regard is had to the underlying policy of the Act which is concerned with the public interest, it is appropriate for the Court to exercise its power to grant declaratory relief to mark its disapproval of the contravening conduct.

94    In Re McDougall; Australian Securities and Investments Commission v McDougall (2006) 229 ALR 158 (Young J), this court noted (at 170 [55]):

Since Australian Softwood Forest Pty Ltd v Attorney-General (NSW) (1981) 148 CLR 121, esp at 125, the courts have recognised that the grant of declaratory relief on the application of a statutory body such as ASIC may serve important law enforcement purposes: see Corporate Affairs Commission (NSW) v Transphere Pty Ltd (1988) NSWLR 596 at 603; Australian Securities and Investments Commission v Sweeney [2001] NSWSC 114 at [30]-[31]; and Pegasus at 571. ASIC is charged with the administration and enforcement of the Act, and there will be many cases where it is in the public interest for the courts to make a declaration on ASIC’s application that the Act has been contravened in specified respects. The making of such a declaration does not simply record the outcome of enforcement proceedings; it may also be an appropriate way of marking the court’s disapproval of the contravening conduct: see Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 80 at 97-99, 106 and 110.

95    His Honour’s approach was endorsed (if only summarily) by the High Court in Wellington Capital Limited v Australian Securities and Investments Commission (2014) 254 CLR 288, 298-299 [10], 312 [40] (French CJ, Crennan, Kiefel and Bell JJ), 316 [59]-[60] (Gageler J).

96    In Director of Fair Work Building Industry Inspectorate v Stephenson & Ors (2014) 146 ALD 75 (White J), this court went further, holding (at 92-93 [104]) that declaratory relief was appropriate because:

…it is a formal record of the adjudication of the charged contravention, and thus comprises a formal and public declaration that the person engaged in the charged conduct. As such, it forms part of the community’s denunciation and censure of the conduct. Second, the prospect that a declaration will be made has by itself a deterrent effect. Third, the making of a declaration operates as a vindication of the regulator’s actions.

97    In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 (Dowsett, Greenwood and Wigney JJ), the court went further still (at 87 [93]):

Declarations relating to contraventions of legislative provisions are likely to be appropriate where they serve to record the Court’s disapproval of the contravening conduct, vindicate the regulator’s claim that the respondent contravened the provisions, assist the regulator to carry out its duties, and deter other persons from contravening the provisions…

98    Despite what would otherwise be my strong contrary inclination, I accept that the court is able to grant declaratory relief as a means of marking its disapproval of conduct found to have been undertaken in breach of a statute. Alternatively, I accept that there might be circumstances where declaratory relief is appropriate to realise some broader educative or deterrent effect, or otherwise to vindicate or assist an applicant’s actions.

99    In the circumstances of this case, though, I do not consider that an exercise of the court’s discretion to grant declaratory relief is warranted. The order that the parties seek amounts to little more than a record of the conclusion contained elsewhere in these reasons (above, [16]). That is not an appropriate deployment of the remedy: Warramunda Village v Pryde (2001) 105 FCR 437, 440 [8] (Gray, Branson and North JJ); Australian Competition and Consumer Commission v MSY Technology Pty Ltd & Ors (2012) 201 FCR 378, 388 [35] (Greenwood, Logan and Yates JJ). There is no obvious reason why it might serve as a record of my decision any more formally than do these reasons; nor is there anything peculiar about the penalty relief that warrants some declaratory introduction or explanation.

100    More significantly, the court’s disapproval of the first respondent’s conduct—and the broader educative or deterrent effect, or vindication of the applicant’s action, to which an expression of that disapproval in declaratory form might give effect—is, in each case, wholly apparent from (and given effect to by) the civil penalty that I have decided to impose. As to any educative or deterrent effect or value, there was nothing beyond bare assertion in any of the parties’ submissions on the point and no evidence was led to demonstrate any effect or value that declaratory relief might, in fact, realise. I am not convinced that a declaration of the sort proposed would have any educative or deterrent effect—or indeed any relevant effect at all—beyond that of the penalty orders that I will make. Likewise, I do not accept that the applicant’s actions will be vindicated any more than they will be by those same penalty orders. In light of the penalty that I will impose, declaratory relief would be “totally pointless”.

101    Finally—and being conscious of the need identified by the High Court in Rural Press for primary judges to pay “[c]lose attention to the form of proposed declarations” (Rural Press, 91 [90] (Gummow, Hayne and Heydon JJ))—the terms of the declaration that the parties propose by consent (above, [72]) are problematic. They record that the first respondent, “through its employees”, “refus[ed]” Messrs Miller and Hardy entry to “a meal room” at the Site on Friday, 5 February 2016. There are at least three difficulties that arise from that phraseology. First (and again), the language used is conclusory: the declaration contains no analysis of how it was that the refusal was constituted; it simply states that there was one. Second, it says nothing about who effected it, other than that they were “employees”. As it happens, those who effected the refusal were employees of the first respondent’s; but it was the positions in which they were employed, rather than their status as employees per se, that gave the comments that they made on Friday, 5 February 2016 that character of refusal (above, [41]-[43]). As presently drafted, the proposed declaration might serve to suggest, wrongly, that any employee of an occupier’s, simply by saying to a permit holder, “you can’t go in there”, could be understood to have refused entry in the proscribed sense, even if he or she had no capacity to facilitate it. Third, it suggests that Messrs Miller and Hardy were denied entry into a meal room. That is not what happened. They were invited (or, perhaps more accurately, directed) to conduct their discussions in a meal room. The complaint is that the induction shed was not the meal room in which they wished to conduct their discussions; they wished to conduct them in another meal room (or other meal rooms). For at least those reasons, the declaration that the parties propose is a “bad precedent” of the kind against which the High Court counselled: Rural Press, 91 [90] (Gummow, Hayne and Heydon JJ).

102    It follows that no declaratory relief will be granted.

Conclusion

103    The court will impose upon the first respondent a pecuniary penalty in the sum of $15,000.00. The applicant seeks an order under s 546(3) of the FW Act that that sum be paid to it. That is appropriate: Sayed v Construction, Forestry, Mining and Energy Union (2016) 239 FCR 336, 353-354 [101] (Tracey, Barker and Katzmann JJ). The court will make such an order. In the absence of any submission about timing, the first respondent shall have 28 days to pay the penalty so ordered. Presumably conscious of the effect of s 570(1) of the FW Act, none of the parties seeks costs. There shall be no order as to costs.

Associate:

Dated:    11 July 2019

SCHEDULE OF PARTIES