FEDERAL COURT OF AUSTRALIA
VID 494 of 2016
Date of judgment:
INDUSTRIAL LAW – pecuniary penalties – contravention of s 500 of the Fair Work Act 2009 (Cth) – consideration of relevant factors in assessment of penalties – relevance of prior contraventions to fixing of penalty – penalties imposed
Federal Court Rules 2011(Cth) rr 10.31(e), 41.07
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union  FCAFC 88; 262 FCR 473
Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining And Energy Union (No 2)  FCA 1968
Australian Building and Construction Commissioner v Gava  FCA 1480
Australian Building and Construction Commissioner v McDermott (No 3)  FCA 1105
Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (No 2)  FCA 897
Australian Competition and Consumer Commission v Chopra  FCA 539
Australian Competition and Consumer Commission v Marksun Australia Pty Ltd  FCA 695; ATPR 42–363
Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd  FCAFC 181; 340 ALR 25
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case)  FCAFC 97; 264 FCR 155
Director of Fair Work Building Industry Inspectorate v Robinson  FCA 525; 241 FCR 338
Parker v Australian Building and Construction Commissioner  FCAFC 56; 365 ALR 402
Date of last submissions:
25 March 2019
Fair Work Division
National Practice Area:
Employment & Industrial Relations
Number of paragraphs:
Solicitor for the Applicant:
Sparke Helmore Lawyers
Counsel for the First and Second Respondent:
Ms S M Kelly
Solicitor for the First and Second Respondents:
Ms Kristen Reid of the Construction, Forestry, Maritime, Mining and Energy Union
DATE OF ORDER:
NOTICE UNDER RULE 41.06 OF THE FEDERAL COURT RULES 2011 (Cth)
TO: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
AND: BRENDAN MURPHY
IF YOU (BEING THE PERSONS BOUND BY THESE ORDERS):
(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THE RELEVANT ORDERS FOR THE DOING OF THE ACT; OR
(B) DISOBEY A RELEVANT 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 ORDERS THAT:
1. The first respondent pay to the Commonwealth of Australia a penalty of $30,000 in respect of its contravention of s 500 of the Fair Work Act 2009 (Cth) as declared by the Court on 24 December 2018.
2. The second respondent pay to the Commonwealth of Australia a penalty of $4,500 in respect of his contravention of s 500 of the Fair Work Act 2009 (Cth) as declared by the Court on 11 December 2018.
3. The pecuniary penalties referred to in orders 1 and 2 above are to be paid to the Commonwealth of Australia within 28 days.
4. There be no order as to costs.
THE COURT DIRECTS THAT:
5. The applicant serve these orders on:
(a) the first respondent in accordance with r 10.04 of the Federal Court Rules 2011 (Cth); and
(b) the second respondent in accordance with r 10.01 of the Federal Court Rules 2011 (Cth).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
INTRODUCTION AND SUMMARY
1 On 9 November 2018, I handed down reasons for judgment in this proceeding: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case)  FCA 1698; 283 IR 338. I found the applicant had proven the alleged contravention of s 500 of the Fair Work Act 2009 (Cth) (FW Act) by the second respondent, Mr Murphy, in relation to an incident that occurred on 3 December 2014 at a construction site under the control of Harris HMC Interiors (Vic) Pty Ltd (Harris HMC) at Geelong Grammar School. I will call that judgment “the liability reasons”. The decision was substantially delayed because the parties submitted, and I agreed, it was appropriate to await the outcome of the Full Court’s decision in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union  FCAFC 88; 262 FCR 473 (Qantstruct), and to allow the parties to make further submissions after that decision was handed down.
2 On publication of the liability reasons, some matters still remained outstanding. I made orders requiring the parties to file a proposed agreed form of declaration regarding Mr Murphy’s liability and reflecting the findings in the Court’s reasons, and to file a joint note regarding the issue of the first respondent’s liability under s 793 of the FW Act and appropriate next steps in the proceeding. A proposed draft declaration and a joint note dated 23 November 2018 were provided to the Court on 5 December 2018.
3 On 11 December 2018, I made the following declaration regarding Mr Murphy’s contravention of s 500 of the FW Act, in the form proposed by the parties in their draft declaration:
THE COURT DECLARES THAT:
1. The Second Respondent contravened s 500 of the Fair Work Act 2009 (Cth) (the FW Act) on 3 December 2014 at a construction site at Geelong Grammar School in Corio (the Site) by:
a) intentionally hindering and obstructing Harris HMC, its subcontractors and their workers by calling and conducting a meeting on the Site, causing the subcontractors and their employees to leave the Site and causing work to cease; and
b) acting in an improper manner by failing to provide notice of his entry in contravention of s 487 of the FW Act, failing to produce his entry permit on request in contravention of s 489 of the FW Act, refusing to leave the Site when requested, making threats about not re-opening the Site and acting rudely and aggressively on the Site.
4 In their joint note, the parties submitted that the Court should determine the question of the first respondent’s ancillary liability on the papers, and proposed that the question of penalties be listed for a separate hearing.
5 On 24 December 2018, I made orders listing the matter for hearing on the question of penalties, timetabling the exchange of further written submissions by the parties in advance of that hearing, and making the following declaration regarding the liability of the first respondent:
THE COURT DECLARES THAT:
1. By reason of ss 550 and 793 of the Fair Work Act 2009 (Cth), the first respondent contravened s 500 of the Fair Work Act 2009 (Cth) by the conduct of the second respondent constituting the contravention the subject of the declaration made by order dated 11 December 2018.
6 The parties returned for oral argument on penalty on 8 April 2019. I refer to and adopt the contents of the liability reasons and the declarations made, and refer to them where necessary in these reasons.
7 Section 500 is a civil remedy provision. Section 546(1) of the FW Act authorises the Court, where satisfied that a person has contravened a civil remedy provision, to order a contravener to pay a pecuniary penalty which the Court considers appropriate. The respondents accepted penalties were appropriate: the dispute was about their size. It was also common ground that a single penalty should be imposed on each respondent, on the basis of a single contravention.
8 The maximum penalties are fixed by subs 546(2)(a), read with col 4 of item 25 of subs 539(2) of the FW Act in respect of Mr Murphy, and subs 546(2)(b), read with col 4 of item 25 of subs 539(2) of the FW Act in respect of the CFMMEU.
9 It was not in dispute that, in accordance with those provisions and the penalty units prescribed at the time of the contraventions, the maximum penalty was 60 penalty units or $10,200 for Mr Murphy and 300 penalty units or $51,000 for the CFMMEU.
10 The parties agreed the Court should order the penalties be payable within 28 days of the Court’s order, and that there should be no orders as to costs. No order for “personal payment” was sought in respect of Mr Murphy: cf Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case)  FCAFC 97; 264 FCR 155, and Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining And Energy Union (No 2)  FCA 1968.
The parties’ approaches in submissions
11 The applicant submits the Court should impose a pecuniary penalty on the CFMMEU at either the maximum or close to the maximum available, and impose a pecuniary penalty on Mr Murphy at the middle of the range. In contrast, the respondents submit the penalty imposed on the CFMMEU should be in the low to mid-range, and the penalty imposed on Mr Murphy should be in the low range.
12 The main issues which were the subject of some contest between the parties were the proper characterisation of the contravening conduct, in terms of its seriousness, and the weight to be given to specific and general deterrence. In relation to the latter issue, there was some difference at the level of principle, and certainly in terms of the application of principle, about the role to be played by the CFMMEU’s history of prior contraventions in fixing an appropriate penalty.
13 There were other submissions put on various factors, to which I refer as necessary below.
14 I accept there is no “checklist” to be completed in assessing appropriate penalties. Nevertheless, there are a range of factors which will usually arise for consideration and which may assume greater or less weight in any given individual circumstance. I deal with what I see as the relevant factors in this proceeding from - below. However, there are three matters of general principle which should be recalled.
15 Penalties are imposed for protective purposes: that is, they constitute a penal response intended to protect the community from future conduct of the same kind. In The Non-Indemnification Personal Payment Case, the Full Court said at :
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]  HCA 14; (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.
16 The relevance of the maximum penalty prescribed for particular conduct was also explained in that case at , by reference to the Full Court’s decision in Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd  FCAFC 181; 340 ALR 25 at -. At  in Reckitt, the Full Court said:
Care must be taken to ensure that the maximum penalty is not applied mechanically, instead of it being treated as one of a number of relevant factors, albeit an important one. Put another way, a contravention that is objectively in the mid-range of objective seriousness may not, for that reason alone, transpose into a penalty range somewhere in the middle between zero and the maximum penalty. Similarly, just because a contravention is towards either end of the spectrum of contraventions of its kind does not mean that the penalty must be towards the bottom or top of the range respectively. However, ordinarily there must be some reasonable relationship between the theoretical maximum and the final penalty imposed.
17 Recently, in Parker v Australian Building and Construction Commissioner  FCAFC 56; 365 ALR 402, Besanko and Bromwich JJ said at :
Veen (No 2) also provides valuable guidance as to the role of the maximum penalty. The High Court’s observations at 478 make it clear that the maximum penalty is reserved for contraventions falling within the worst category of cases for which that penalty is prescribed. This does not require characterisation as the worst possible case. However, a case is not in the worst category merely by reason that the contravener has a history of prior contraventions, although that history may assist in the proper characterisation of the instant contravention. Considerable caution may be required to avoid blurring this distinction. This is especially so when, as in this case, past contraventions are many in number, extend over a protracted period of time and the legislature has not seen fit to provide greater penalties for second and subsequent contraventions.
18 One final matter of general approach should be mentioned. There can be a tendency, in parties’ submissions, for it to be suggested that a particular factor “increases” or “decreases” the appropriate penalty, as if there is some addition and subtraction which is taking place in order to arrive at an appropriate figure for a monetary penalty. That is, of course, not an approach that would be consistent with the fixing of penalty as an “instinctive synthesis”. For my own part, I consider it more helpful to conceptualise the process as one of giving more or less weight to particular factors, but even then the Court must be careful not to turn the exercise into an arithmetical one: see generally Australian Competition and Consumer Commission v Marksun Australia Pty Ltd  FCA 695; ATPR 42–363 at  (Gilmour J); Australian Competition and Consumer Commission v Chopra  FCA 539 at  (Middleton J).
The characterisation of Mr Murphy’s conduct
19 The characterisation of Mr Murphy’s conduct, as the principal contravener, is important not only to the penalty which is appropriate for his conduct, but also the fixing of a penalty of the CFMMEU in terms of its ancillary liability. The respondents submitted this was the correct approach, and subject to what I say below about the relevance of the CFMMEU’s history of contraventions, I accept that submission.
20 The gravamen of the prohibition in s 500 concerns conduct of a particular nature by a permit holder, in relation to particular premises over which a right of entry exists. Both limbs of s 500 (“intentionally hinder or obstruct” and “act in an improper manner”) direct attention to the nature and consequences of the conduct of the permit holder. There will be examples of hindrances or obstructions which are severe, in terms of their duration, the level of interference with activities on the worksite, and the nature and range of the effects of any hindrances or obstructions. There will be improprieties which are egregious, and those that are less so.
21 I am satisfied that Mr Murphy’s conduct was not at the egregious level of impropriety, but neither was it trivial nor minor. His conduct was, as I found in the liability reasons at , aggressive and rude. It involved the making of threats about not allowing the site to re-open, and it involved refusing to leave the site when confronted by Mr PM Hunt and also by Mr J Hunt, in circumstances where it should have been clear to Mr Murphy he ought to have done so. Mr Murphy can be taken to have understood his responsibilities as a permit holder, and he chose not to adhere to them.
22 The conduct which I found in the liability reasons (at  and ) resulted in Mr Murphy having hindered the subcontractors and their employees on the Harris HMC site, and by reason of his interference, he also hindered or obstructed Harris HMC. He did so by both calling and conducting a meeting on the worksite after he had been informed (correctly) he should leave and by what he said and what he did on the site, being the reason that the subcontractors and their employees left the site that day, and work ceased.
23 As the evidence to which I referred at  and  of the liability reasons indicated, Mr Murphy did not appear to care whether he had a valid reason to be on the site, or to care that he had not provided an entry notice. He was concerned to make it clear to the Harris HMC employees who were trying to have him comply with his obligations that he was, in reality, the one in charge:
“Well, you’re in my backyard now”.
24 My findings at  of the liability reasons are also relevant:
I find further that Mr Murphy engaged in the conduct constituting the hindering or obstruction intentionally. He consciously and deliberately came onto the site with the apparent purpose of confronting Harris HMC about the contractors it was using. He made unequivocal statements about closing the site, and about the workers “going home”. He told Mr Headberry “No, it won’t” when Mr Headberry said that the site needed to be reopened as soon as possible. He was plainly not interested in having any discussion or negotiation with any employee of Harris HMC: his sole intention was to get all the workers off the site, and to make the point he wished to make about what happens to head contractors who engage subcontractors of which the CFMEU did not approve. There was nothing accidental about his conduct. There was nothing merely incidental about the statements he made. Mr Murphy’s statements and conduct were all calculated to achieve the aim of stopping work on the site, which they did.
25 Further, as I found at  it was not difficult to identify Mr Murphy’s conduct, and threats, as the reason the subcontractors and their employees left the work site for the day. This was not a situation where an official forced entry onto a site and then left, without any other consequences for work on that site. These circumstances were a more serious kind of hindrance or obstruction.
26 I also found Mr Murphy was assertive and confrontational. At -, I describe the level of confrontation and my finding about its explanation:
This, together with the “you’re shitting in my backyard” comment, goes some way to explaining the virulence of Mr Murphy’s behaviour. He was, I find, angry that in “his town”, a head contractor like Harris HMC was using subcontractors of which he, and the CFMEU, did not approve. That attitude made not only Harris HMC the target of Mr Murphy’s anger, but also the subcontractors themselves.
Mr Murphy’s statements made it quite clear he asserted he could close the site, and was going to do so. His behaviour was assertive and confrontational. He took a stand and gave no indication he was going to back down. That a CFMEU official was behaving in such a way, on the basis that particular sub-contractors had been hired and not others, would not have been lost on the subcontractors themselves, and their employees. During the present proceeding, a positive disinclination to get into any debate or confrontation with a CFMEU official was, in my opinion, on display in the evidence given by Mr Hetherington about why he and his employees left the Harris HMC site on 3 December 2014.
27 Thus, there are as the applicant submitted, a number of aspects to Mr Murphy’s conduct which need to be considered in fixing an appropriate penalty: his aggression, his language, the interference with work on the site, the refusing to leave when told to, the contrived OH&S concerns, the threats not to allow the site to re-open – all because of his personal preoccupation with Harris HMC using a particular subcontractor, which it was entitled to do.
28 On the other hand, I also accept, as the respondents submitted, that although the conduct was deliberate, it was relatively confined in terms of time period, and there was no evidence the conduct was systematic or part of an ongoing campaign. Aside from the evidence of loss by Mr Hetherington of a relatively small amount of money, there was no evidence of any financial impact from Mr Murphy’s conduct. As Charlesworth J pointed out in Director of Fair Work Building Industry Inspectorate v Robinson  FCA 525; 241 FCR 338 at , the Court can still infer from the evidence that was presented about the circumstances of the contraventions, and the cessation of work, that there was some disruption, inconvenience and expense occasioned to Harris HMC and its subcontractors. The respondents accepted an inference of this kind could be drawn.
Matters after the contraventions
29 The respondents submit, and I accept, it is a factor in their favour that there was co-operation to a considerable extent in the presentation of this proceeding: there was a substantive agreed statement of facts, and there were some concessions. It is also true that the respondents maintained a contested position on some aspects of liability, and have done so as to penalty, so there has still been a need for several hearings. Once the Full Court decision in Qanstruct was handed down, the respondents pointed to their acceptance of the position as stated by the Full Court. In reality, however, as a single judge I was in any event bound by what the Full Court said, so that the respondents’ position was not the most significant factor in the way the Court applied the Full Court’s decision.
30 It is also true, as the applicant submits, that there is no evidence of the CFMMEU taking steps to educate its officials, and its permit holders in particular; or any evidence of contrition or steps taken to modify the approach taken by the CFMMEU to its entry practices onto worksites.
31 Rather, the continuing approach of the CFMMEU appears to be that it defends the conduct of its officials in all circumstances, and shows no sign of any intention to alter its industrial practices, despite repeated findings of this Court. I respectfully agree with the observations of White J in Australian Building and Construction Commissioner v Gava  FCA 1480 at , drawing on what was said by Barker J in Australian Building and Construction Commissioner v Upton (The Gorgon Project Case) (No 2)  FCA 897 at  and .
How the prior contraventions of the CFMMEU should be considered
32 This was the main issue in dispute between the parties at the penalty hearing, in terms of how this factor might affect the size of the penalty which should be imposed on the CFMMEU.
33 The basic principle is that, in taking into account the history of previous contraventions, a contravener may not be “sanctioned anew for past contraventions”: see Parker at  (Besanko and Bromwich JJ). However, the parties drew the Court’s attention to authorities which might be said to place different emphasis on the relevance of prior contraventions, and give different weight to the “record” of an entity such as the CFMMEU where, on any view, there are extensive previous contraventions of industrial laws.
34 It is as well to begin with a short description of what that record was, on the evidence before the Court at the penalty hearing. The respondents did not dispute the accuracy of the material on which the applicant relied to establish the prior contraventions of the CFMMEU. I deal with Mr Murphy’s prior contraventions separately below.
35 The applicant relied on three tables. One set out the CFMMEU’s general record of prior contraventions. This table listed 150 proceedings in which penalties had been imposed on the CFMMEU, the earliest being in 2003, and the latest being in December 2018. The second table comprised only those penalties imposed for contraventions of s 500 of the FW Act. This table listed 90 proceedings, from mid-2011 until December 2018. The applicant then provided a supplementary table, listing three further proceedings in which penalties had been imposed between February and April 2019.
36 A variety of adjectives might be employed to describe a record such as this, and adjectival descriptions can be found in most of these previous decisions. This level of contravening conduct can only indicate a continuing readiness to disregard and flout the industrial laws of this country, when it suits the CFMMEU and its officials to do so.
Circumstances of the CFMMEU
37 The real debate is how this record can be factored into the Court’s consideration of what penalty is proportionate to the contravening conduct in this case.
38 In Parker at , Besanko and Bromwich JJ referred to and endorsed the passage from the earlier Full Court decision in The Non-Indemnification Personal Payment Case at , which I have set out at  above. At , in describing the challenges to the approach taken by the primary judge in that case, their Honours pointed to the caution needed in approaching a respondent with a substantial record of prior contraventions, such as the CFMMEU:
Nor was there any separate error in finding that past contraventions were reflective of recidivism in the hands of the CFMEU. No other rational conclusion can be reached in light of that Union’s contravening history, at least in the construction industry. However that only heightens the need for caution in the application of Veen (No 2).
39 As their Honours recognised, the term “recidivist” can appropriately be applied to the CFMMEU. However, the penalty imposed by the Court for the contraventions found to have occurred in this proceeding must be proportionate to the seriousness of that contravening conduct, without allowing the CFMMEU’s recidivist record to affect that assessment of the seriousness of the conduct.
40 That said, as Besanko and Bromwich JJ recognise, the extensive record of contraventions of the CFMMEU is relevant to the weight to be given to deterrence in fixing an appropriate penalty. At , their Honours explained how this was so:
The aspect of Veen (No 2) which acknowledges that intractable behaviour may require a greater degree of deterrence is more pertinent for the CFMEU because of its more substantial contravening history. This history casts a much more adverse view of the contraventions in its hands than in the hands of the CFMEU NSW. When the greater need for deterrence arising from the instant contravening is properly considered, there is no element of imposing new sanctions for past contraventions. Instead, the prism of the past informs acutely the view to be taken of the conduct in contemplation. It was this sort of reasoning that enabled Mr Veen to have a life sentence for manslaughter upheld, despite having earlier received a sentence from the High Court of 12 years’ imprisonment for a substantially similar prior act of manslaughter, albeit with protection of the public rather than deterrence as the governing consideration, and an absence of provocation for the second offence.
41 In reality, the CFMMEU appears undeterred by whatever penalties are fixed by this Court for its contraventions. To speak of deterrence as a matter likely to have any real effect on the CFMMEU appears to me to be engaging in something of a fiction.
42 Indeed, the applicant makes this submission at  of its written submissions on penalty:
Nor have the associated penalty orders, including in recent times significant pecuniary penalties including near maximum penalties curbed the CFMMEU’s ongoing non-compliance with provisions of the FW Act.
43 These observations cannot be used as any justification for the imposition of a penalty at or near the maximum penalty. The justification for imposing a penalty at that end of the range must be derived from the objective seriousness of the contravening conduct, and any particular considerations of deterrence which may be relevant. Otherwise, as the respondents submitted in their written submissions, the CFMMEU would be punished for its history of contraventions, not for the conduct proven in this proceeding. The circumstances of the contraventions in this case do not merit the fixing of a penalty near the maximum.
Circumstances of Mr Murphy
44 There is no evidence of Mr Murphy’s personal circumstances, so that is not a matter the Court can take into account in fixing penalties. There is evidence from Ms Swayn, a legal officer for the CFMMEU, that Mr Murphy’s employment ended with the CFMMEU in July 2016 and that he is “retired”. That is all that is known. There is no evidence from Mr Murphy himself. There is no evidence, one way or the other, whether he has taken up any other work in his retirement. I accept, however, that his retirement from the CFMMEU means that specific deterrence, in terms of future conduct as a CFMMEU official, is not a matter to which much weight need be given, since on the evidence there is no basis to conclude Mr Murphy is likely to be in a positon again where he will be exercising rights of entry, or working as a union official: cf Australian Building and Construction Commissioner v McDermott (No 3)  FCA 1105 at  (Charlesworth J).
45 Mr Murphy has been found to have contravened the FW Act twice before: in 2008 and 2014. The 2014 conduct occurred only approximately six months before the contravening conduct in the present case. That is of some significance, although it is common ground that proceedings for the 2014 conduct were not issued against Mr Murphy until after the contravening conduct in the present case. Thus, it cannot be said he engaged in the contravening conduct in this case having already been aware he was being prosecuted for like conduct shortly before it. Nevertheless, the closeness in time of the two incidents does suggest that Mr Murphy’s conduct on this occasion should not be seen as isolated and completely divorced from how he had behaved on worksites in the past, and no such submission was made on his behalf.
46 Therefore some, but not a great deal of, weight should be given to Mr Murphy’s two prior contraventions. Counsel for Mr Murphy properly accepted he should not be treated in the same way as someone who has no previous contraventions. I note that because Mr Murphy retired in mid-2016, the fact there are no further contraventions after this date cannot be implicitly attributed to any particular restraint or awareness of the need to change his behaviour.
The appropriate penalty
47 There was no dispute that the contraventions as found should be the subject of a single penalty for each respondent, on the basis of a single contravention of s 500, and I accept that is the appropriate approach.
48 As I have noted earlier in these reasons, Mr Murphy’s conduct was not at the egregious level of impropriety, but neither was it trivial nor minor. It was confrontational, aggressive and rude. Mr Murphy was bullying and overbearing, and deliberately so. His conduct involved the making of threats about not allowing the site to re-open, and it involved refusing to leave the site when, lawfully, he was asked to. His unlawful conduct did result in some disruption of work at the site for the rest of that day. It resulted in some financial loss, but not a loss that could be described as economically significant for the subcontractors involved.
49 The penalty should signify the Court’s disapproval of this kind of conduct, and make plain that it is unacceptable. Such conduct is an abandonment of the responsibilities of union officials who are given rights of entry. Mr Murphy sought to use his status as a permit holder, and his right of entry, to bully the Harris HMC supervisors about which subcontractors they were using, when on the evidence there was no basis for Mr Murphy to have any justifiable concerns. Rather, he was expressing his personal preferences in that respect. The penalty should be an amount of money which is not insignificant for an individual, and more than a “slap on the wrist”.
50 For Mr Murphy, the seriousness and nature of the conduct, the need for general deterrence, and the fact he does not have the benefit of being a first time contravener, have led me to fix a penalty in the lower mid-range of what is available, taking into account little weight should be given to specific deterrence, and some account should be taken that Mr Murphy has retired. I fix a penalty as against him at $4,500.
51 For the CFMMEU, given the findings I have made about the objective seriousness of Mr Murphy’s conduct, a penalty against the union should also be fixed in the mid-range, but with more weight to be given to specific as well as general deterrence, in the continued hope that the CFMMEU may take some notice of the Court’s view of its behaviour, and may see the fruitlessness of its funds, including its members’ funds, being expended on the payment of pecuniary penalties. I fix a penalty as against the CFMMEU of $30,000.
52 Orders will be made accordingly. The parties had agreed proposed orders in relation to service of the Court’s orders. It was proposed that Mr Murphy would not be personally served, and that the terms of r 10.31(e) of the Federal Court Rules 2011 (Cth) would be invoked. Given the nature of the orders, and the fact they carry an indorsement, in my opinion, the better course is to adhere to the requirements for personal service of an indorsed order reflected in the terms of r 41.07(1) of the Federal Court Rules. I recognise the presence of r 41.07(2), and authorities concerning whether personal service is always required, but in my opinion it is appropriate in circumstances such as this that there be personal service on an individual, where a civil penalty has been imposed and the Court’s orders carry an indorsement.