FEDERAL COURT OF AUSTRALIA

Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 1647

File number:

NSD 620 of 2018

Judge:

FLICK J

Date of judgment:

9 October 2019

Catchwords:

INDUSTRIAL LAW statement of agreed facts – agreement as to form of declaratory relief and penalties – principles to be applied whether agreed penalties within permissible range

Legislation:

Fair Work Act 2009 (Cth) ss 19, 417, 421, 546

Petroleum Retail Marketing Sites Act 1980 (Cth) s 10

Workplace Relations Act 1996 (Cth)

Cases cited:

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113, (2017) 254 FCR 68

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The BKH Contractors Case) (No 2) [2018] FCA 1563

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8, (2008) 165 FCR 560

Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, (2015) 258 CLR 482

Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Laing (1998) 89 FCR 17

DP World Sydney Ltd v Maritime Union of Australia (No 2) [2014] FCA 596, (2014) 318 ALR 22

Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (No 4) [2017] FCA 580

Kelly v Fitzpatrick [2007] FCA 1080, (2007) 166 IR 14

Markarian v The Queen [2005] HCA 25, (2005) 215 ALR 213

Ministry for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72, (2004) ATPR 41-993

NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285

Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2008] FCAFC 170, (2008) 171 FCR 357

Qantas Airways Ltd v Transport Workers’ Union of Australia [2011] FCA 470, (2011) 280 ALR 503

Registered Organisations Commission v Mijatov [2018] FCA 939

Date of hearing:

3 & 12 June 2019

Registry:

New South Wales

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

39

Counsel for the Applicant:

Mr Y Shariff

Solicitor for the Applicant:

Seyfarth Shaw Australia

Counsel for the Respondents:

Mr R Reitano

Solicitor for the Respondents:

Slater & Gordon Lawyers

ORDERS

NSD 620 of 2018

BETWEEN:

PATRICK STEVEDORES HOLDINGS PTY LTD

Applicant

AND:

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

First Respondent

PAUL MCALEER

Second Respondent

JUDGE:

FLICK J

DATE OF ORDER:

9 OCTOBER 2019

THE COURT DECLARES THAT:

1.    The First Respondent contravened s 417(1) of the Fair Work Act 2009 (Cth) by organising industrial action taken by employees of Patrick Stevedores Holdings Pty Ltd at Port Botany NSW in the form of a refusal to perform work on the day, evening and night shifts of 14 April 2018, and on the night shift ending on 16 April 2018, prior to the nominal expiry date of the Patrick Terminals Enterprise Agreement 2016.

2.    The Second Respondent contravened s 417(1) of the Fair Work Act 2009 (Cth) by organising industrial action taken by employees of Patrick Stevedores Holdings Pty Ltd at Port Botany NSW in the form of a refusal to perform work on the day, evening and night shifts of 14 April 2018, and on the night shift ending on 16 April 2018, prior to the nominal expiry date of the Patrick Terminals Enterprise Agreement 2016.

THE COURT ORDERS THAT:

3.    A pecuniary penalty of $30,000 is imposed on the First Respondent pursuant to s 546 of the Fair Work Act 2009 (Cth) in respect of the contravention referred to in the Declaration in paragraph 1 above.

4.    A pecuniary penalty of $6,000 is imposed on the Second Respondent pursuant to s 546 of the Fair Work Act 2009 (Cth) in respect of the contravention referred to in the Declaration in paragraph 2 above.

5.    The above penalties are to be paid to the Applicant in accordance with s 546(3) of the Fair Work Act 2009 (Cth) within 30 days of the date of this order.

6.    The primary proceeding is otherwise dismissed.

7.    The Cross-claim is dismissed.

8.    There is no order as to costs in respect of either the primary proceeding or the Cross-claim.

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

REASONS FOR JUDGMENT

FLICK J:

1    The Applicant in the present proceeding, Patrick Stevedores Holdings Pty Ltd (“Patrick Stevedores”), commenced the proceeding in April 2018 by filing in this Court an Originating Application, together with a Statement of Claim.

2    The Respondents to the proceeding are the Construction, Forestry, Mining, Maritime and Energy Union (the “CFMMEU”) and Mr Paul McAleer. Mr McAleer is and was at all material times the Branch Secretary of the Sydney Branch of the CFMMEU’s Maritime Union of Australia Division.

3    An Amended Statement of Claim was filed in June 2018. Defences were also filed in June 2018. A Reply was filed in July 2018.

4    Patrick Stevedores is part of a corporate group that conducts a business of operating container stevedoring, including at a terminal at Port Botany in Sydney (the “Terminal”). The subject-matter of the proceeding concerns a stoppage of work on 14, 15 and 16 April 2018. In summary, Patrick Stevedores originally contended that the CFMMEU and Mr McAleer contravened ss 417(1) and 421(1) of the Fair Work Act 2009 (Cth) (the Fair Work Act).

5    In very summary form, the Respondents by their Defences:

    denied having organised industrial action within the meaning s 19(1)(b) of the Fair Work Act, namely the Respondents denied having organised “a ban, limitation or restriction on the performance of work by an employee….

Further, the Respondents contended, in their Outline of Submissions, that the stoppage of work was not “industrial action” within the meaning of s 19 of the Fair Work Act because the action was excluded from that definition by reason of it either:

    being “based on a reasonable concern of the employee about an imminent risk to his or her health or safety” within the meaning of s 19(2)(c)(i) of the Fair Work Act; or

    being authorised (or agreed to) by Patrick Stevedores by reason of cl 4.10 of Pt B, Sch 4 of the Patrick Terminals Enterprise Agreement 2016 (the “Enterprise Agreement”).

The Respondents, in their Outline of Submissions, also contended there was no refusal to work as the “employees were available to perform other work”.

6    A Cross-claim was also filed in June 2018 by the CFMMEU seeking (inter alia) an order that Patrick Stevedores pay the salary not paid to the employees (named in the Schedule to the Cross-claim) during that period of time when work was not carried out on 14, 15 and 16 April 2018.

7    The hearing of those allegations was listed for a two week period commencing on 3 June 2019. On the afternoon of 2 June 2019, however, the Court was advised that the parties had resolved the question of liability. Accordingly, timetabling orders were made, including vacating the remaining hearing dates save for one day on 12 June 2019. A Further Amended Statement of Claim, filed on 3 June 2019, abandoned the allegation as to a contravention of s 421 of the Fair Work Act. The Respondents then filed Amended Defences on 5 June 2019. A Statement of Agreed Facts was filed on 7 June 2019. The First and Second Respondents have each admitted one contravention of s 417 of the Fair Work Act.

8    The only issue left to be resolved by the Court at the hearing on 12 June 2019 concerned the penalties to be imposed. The parties each filed a separate Outline of Submissions on Penalty.

THE FAIR WORK ACT

9    Part 3-3 of the Fair Work Act is directed at “Industrial action”. Within that Part, Div 2 identifies that which is characterised as “Protected industrial action”.

10    Division 3, within Pt 3-3, provides that there is to be “No industrial action before nominal expiry date of [an] enterprise agreement”. Within Div 3 is s 417, which provides, in part, as follows:

Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc.

No industrial action

(1)    A person referred to in subsection (2) must not organise or engage in industrial action from the day on which:

(a)    an enterprise agreement is approved by the FWC until its nominal expiry date has passed; or

(b)    a workplace determination comes into operation until its nominal expiry date has passed;

whether or not the industrial action relates to a matter dealt with in the agreement or determination.

(note omitted)

11    Industrial action” is defined in s 19 of the Fair Work Act, in relevant part, as follows:

Meaning of industrial action

(1)    Industrial action means action of any of the following kinds:

                 (a)    …;

(b)    a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c)    a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

    (d)    ...

(2)    However, industrial action does not include the following:

  (c)    action by an employee if:

(i)    the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

(ii)    the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

12    When referring to the definition of industrial action in the now-repealed Workplace Relations Act 1996 (Cth), French J in Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Laing (1998) 89 FCR 17 at 30-31 observed:

While par (a) of the definition relates to the “performance of work”, par (b) is more broadly expressed. It refers to “a ban, limitation or restriction on the performance of work, or on the acceptance of or offering for work”. The central meaning of the term “ban” in the industrial, as in its ordinary usage, is to “prohibit or interdict”: the Macquarie Dictionary. Communication between persons or an organisation and persons is essential to a “ban”. And while the notion of “limitation” or “restriction” may have a meaning related to manner of actual performance of work, that meaning is picked up in par (a) of the definition. Under par (b) it extends to the communication of a limitation or restriction. Communication picked up under pars (b) and (c) must no doubt purport to be at least hortatory, if not authoritative and binding, upon the person or persons to whom they are directed.

See also: Qantas Airways Ltd v Transport Workers’ Union of Australia [2011] FCA 470 at [317], (2011) 280 ALR 503 at 566 per Moore J.

The background facts

13    If reference is made to the affidavit evidence that was filed in anticipation of the hearing as to liability, it emerges that the operations at the Terminal included the use of various equipment, including “quay cranes” and “Reach Stackers”.

14    Quay cranes, also called “portainers” or “ship to shore” cranes, are used to extend out over ships which berth at the Terminal and to load and unload shipping containers. The Reach Stackers are used to move shipping containers on and off trains.

15    The resolution of breakdowns and maintenance at the Terminal, according to the Engineering and Maintenance Manager at the Terminal (Mr Maurice Hayes), involves Patrick Stevedores:

    employing Technical Specialists whose role is to initially diagnose faults, deploy Operations Support Crews and to assist with the resolution of faults with which the Operation Support Crews cannot deal;

    employing Reliability Engineers who have specialist knowledge of various aspects of the machinery used at the Terminal; and

    engaging contractors to perform various functions on site.

At all relevant time the Operations Support Crew functions were contracted to Kalmar Equipment (Australia) Pty Ltd (“Kalmar”).

16    Although this summary is extracted from affidavits not read in this proceeding, none of this description is controversial.

17    As set forth in the Statement of Agreed Facts, in April 2018 Kalmar was engaged in enterprise bargaining with its employees who worked at the Terminal. Its employees were represented by the CFMMEU.

18    The CFMMEU notified Kalmar that the Kalmar employees would be engaging in protected stoppage of work for 24 hours commencing at 5.30am on 14 April 2018. This stoppage of work by the Kalmar employees represented by the CFMMEU occurred as notified. Further, on 15 April 2018, there were no electrical tradesmen provided by Kalmar to work the night shift.

19    Having received the CFMMEU notice, Kalmar made arrangements to supply maintenance coverage, consisting of alternative labour, to perform maintenance for the 24 hours commencing at 5.30am on 14 April 2018. In the early hours of 16 April 2018, Kalmar also provided replacement electrical tradesmen after none had been provided for the 15 April 2018 night shift.

20    Despite these arrangements being put in place, whenever these replacement maintenance employees were employees other than the usual Kalmar employees, the employees of Patrick Stevedores refused to perform work on the quay cranes. This occurred during the 24 hours on both 14 and 15 April 2018 and again on the night shift commencing on 15 April 2018 and ending on 16 April 2018.

The admissions made – three issues no longer in need of resolution

21    The admissions made by the Respondents, albeit belatedly and at the very start of the hearing, as to liability removed the necessity for the Court to resolve a series of legal and factual complexities arising out of the background facts.

22    Without attempting to be exhaustive, the issues no longer in need of resolution include the following.

23    First, one issue was whether the action taken by the Respondents fell within cl 4.10 of Pt B, Sch 4 of the Enterprise Agreement. That clause provided as follows:

Maintenance employees will be available at all times to ensure safety support. Without adequate maintenance coverage including a qualified breakdown crew, no work will be performed in the Terminal.

24    Second, a further issue no longer in need of resolution was whether an email sent by Mr McAleer on 13 April 2018 to Mr Bruce Guy, the Terminal Manager at the Port Botany Terminal (and also sent to a number of other persons) constituted the organising of “industrial action” within the meaning of the definition in s 19(1)(b) of the Fair Work Act. That email provided as follows (without alteration):

Bruce,

The email below appears to fly in the face of the facts related by Kalmar today at the Fair Work Commission hearing in Melbourne.

Kalmar have indicated they have two relocated tech specialists from interstate who cannot perform any maintenance functions grade 1-6 as set out in the Enterprise Agreement, as well as six contractors, three each on two twelve hour shifts, who are not qualified to the minimum standard as set out in the Kalmar Agreement.

As you can imagine, this is an unacceptable safety risk to Patrick employees who are entitled to the following in addition to other clauses in the EA including 1.3 of Part B and various clauses related to safety throughout the document and legislation:

Clause 4.10. of Part B states that:

Maintenance employees will be available at all times to ensure safety support. Without adequate maintenance coverage including a qualified breakdown crew, no work will be performed in the Terminal.

Not having available a maintenance breakdown crew that are minimally skilled to support the Terminal workers is a change to an accepted practice as well as fundamentally unsafe and therefore employees will not be performing work in the Terminal tomorrow commencing 5:30am for 24 hours or until such time as maintenance workers supporting the Terminal are qualified to the minimum requirement as set out in the Kalmar Agreement.

The Branch is willing to discuss the matter at a time convenient to the Parties, we look forward to you adhering to Clause 1.3 of Part B of the current Enterprise Agreement.

1.3. Where a dispute arises in the workplace as a consequence of the Company directing employees to work different to accepted practice/s or a suspected breach of the Enterprise Agreement, work shall continue as existed prior to the dispute arising for a period of 72 hours, and a discussion has taken place between the MUA Branch Secretary and General Manager of Terminal Operations or their nominated representatives. Where the company proceed with directing employee/s to carry out work contrary to the terms of this Agreement or accepted practice, work shall continue as existed prior to the dispute arising until the matter has been determined through the Dispute Resolution Procedure. It is the intention of the Parties that clause 1.3 will not apply where there has been genuine consultation under the consultation and change clause.

Paul

Mr McAleer (it may be noted) maintained in his affidavit affirmed 21 September 2018 that the email wasnot a direction not to work, but a reflection of the views expressed to me by employees that there was inadequate maintenance coverage, a breach of the Enterprise Agreement and a change to accepted practice, and the consequence required by the Agreement in that situation that no work is to be performed until the issue is resolved.

25    Third, a further issue no longer in need of resolution was whether the concerns as to safety being voiced by the Respondents fell within s 19(2)(c) of the Fair Work Act.

26    These concerns were potentially not to be easily resolved.

PENALTIES – GENERAL PRINCIPLES & AGREEMENT

27    The source of statutory power to impose a penalty is to be found in s 546 of the Fair Work Act. That section provides, in relevant part, as follows:

Pecuniary penalty orders

(1)    The Federal Court, the Federal Circuit Court or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.

Determining amount of pecuniary penalty

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

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

(b)    if the person is a body corporate5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2).

(note omitted)

In the present case, the maximum penalty that may be imposed upon an individual for a contravention of s 417 is $12,600; in the case of a body corporate, the maximum penalty is $63,000.

28    Although there is agreement between the parties as to the general principles to be applied in the present case, three matters should be briefly addressed.

29    First, a primary purpose in imposing penalties is deterrence: Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 at [55], (2015) 258 CLR 482 at 506 per French CJ, Kiefel, Bell, Nettle and Gordon JJ (Director, Fair Work Building Industry Inspectorate”). See also: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113 at [98] to [99], (2017) 254 FCR 68 at 88 per Dowsett, Greenwood and Wigney JJ.

30    Second, the process of quantifying an appropriate penalty is not an “exact science” but rather a process of “instinctive synthesis”: Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [27] to [28], [55] and [78]; (2008) 165 FCR 560 at 567 to 568 per Gray J, 572 and 577 per Graham J. It nevertheless remains a process guided by a consideration of a number of well-accepted factors. In Kelly v Fitzpatrick [2007] FCA 1080 at [14], (2007) 166 IR 14 at 18 to 19, Tracey J was called upon to quantify penalties for admitted contraventions of the Transport Workers Award 1998 and in doing so adopted the following as a “non-exhaustive range of considerations” to be taken into account:

    the nature and extent of the conduct which led to the breaches;

    the circumstances in which that conduct took place;

    the nature and extent of any loss or damage sustained as a result of the breaches;

    whether there had been similar previous conduct by the respondent;

    whether the breaches were properly distinct or arose out of the one course of conduct;

    the size of the business enterprise involved;

    whether or not the breaches were deliberate;

    whether senior management was involved in the breaches;

    whether the party committing the breach had exhibited contrition;

    whether the party committing the breach had taken corrective action;

    whether the party committing the breach had cooperated with the enforcement authorities;

    the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and

    the need for specific and general deterrence.

These factors have since been cited in other decisions of this Court: e.g., Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2008] FCAFC 170 at [57] to [58], (2008) 171 FCR 357 at 374 to 376 per Branson and Lander JJ; Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (No 4) [2017] FCA 580 at [47] to [48] per Gilmour J; Registered Organisations Commission v Mijatov [2018] FCA 939 at [45] per Bromwich J.

31    Third, in circumstances where the parties have reached agreement as to the facts and further reached agreement as to the appropriate quantum of penalty, this Court can act upon that agreement if it is “appropriate” to do so: Ministry for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 at [51], (2004) ATPR 41-993 (“Mobil Oil”). Branson, Sackville and Gyles JJ were there considering this issue by reason of an admitted contravention by Mobil of s 10 of the Petroleum Retail Marketing Sites Act 1980 (Cth). Their Honours referred to the earlier decision of the Full Court of this Court in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 (“NW Frozen Foods”) and continued:

[51]    The following propositions emerge from the reasoning in NW Frozen Foods:

(i)    It is the responsibility of the Court to determine the appropriate penalty to be imposed under s 76 of the [Trade Practices] Act in respect of a contravention of the [Trade Practices] Act.

(ii)    Determining the quantum of a penalty is not an exact science. Within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another.

(iii)    There is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy. Accordingly, when the regulator and contravenor have reached agreement, they may present to the Court a statement of facts and opinions as to the effect of those facts, together with joint submissions as to the appropriate penalty to be imposed.

(iv)    The view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty. In particular, the views of the regulator on matters within its expertise (such as the ACCC’s views as to the deterrent effect of a proposed penalty in a given market) will usually be given greater weight than its views on more “subjective” matters.

(v)    In determining whether the proposed penalty is appropriate, the Court examines all the circumstances of the case. Where the parties have put forward an agreed statement of facts, the Court may act on that statement if it is appropriate to do so.

(vi)    Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The question is whether that figure is, in the Court’s view, appropriate in the circumstances of the case. In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if within the permissible range.

The same approach has been adopted when considering the imposition of penalties to be imposed under the Fair Work Act: DP World Sydney Ltd v Maritime Union of Australia (No 2) [2014] FCA 596 at [20] to [22], (2014) 318 ALR 22 at 27 to 29 per Flick J.

32    As recognised by Gageler J in Director, Fair Work Building Industry Inspectorate [2015] HCA 46 at [68], (2015) 258 CLR at 511 the “the principles applicable to agreed penalty submissions in a civil penalty proceeding remain those articulated in NW Frozen Foods … and Mobil Oil….

The penalties as agreed

33    The penalties that have been agreed in the present case are $30,000 for the CFMMEU and $6,000 for Mr McAleer.

34    Those penalties, it should be noted at the outset, are in the middle of the range of penalties that could potentially be imposed. The maximum penalty is a “yardstick” against which the process of quantification is generally to proceed: cf. Markarian v The Queen [2005] HCA 25 at [30] to [31], (2005) 215 ALR 213 at 222 per Gleeson CJ, Gummow, Hayne and Callinan JJ. See also: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The BKH Contractors Case) (No 2) [2018] FCA 1563 at [19] per Flick J.

35    In considering whether it is “appropriate” to fix the penalties in the agreed amounts and in considering whether those penalties are within the “permissible range”, it is not necessary to give as much attention to each of the factors summarised by Tracey J in Kelly v Fitzpatrick as would otherwise be warranted in the absence of agreement. But the task of forming a view as to whether agreed amounts are appropriate” and within the “permissible range is not at large. It remains a task informed by consideration of those factors, albeit a task not warranting a detailed application of each of those factors to the facts. It is sufficient to make an assessment founded upon a more generally expressed overview – albeit after a careful consideration of the materials available.

36    As expressed by French CJ, Kiefel, Bell, Nettle and Gordon JJ in Director, Fair Work Building Industry Inspectorate [2015] HCA 46, (2015) 258 CLR at 498:

[31]    … Contrary … to the supposed danger of the court being perceived as a “rubber stamp” for agreed penalty submissions, NW Frozen Foods required the court always to form its own view about the appropriate range of penalties. Finally, there would be little advantage in limiting parties to an agreed range as opposed to an agreed figure. A better way of reinforcing the court’s responsibility to determine an appropriate penalty was for the court to scrutinise the material presented to it carefully and satisfy itself that it was sufficient to determine whether the agreed penalty was appropriate.

[32]    By way of explication, the Full Court added five observations, in substance as follows:

(1)    As noted in Allied Mills and NW Frozen Foods, the rationale for giving weight to a joint submission on penalty rests on the saving in resources for the regulator and the court, the likelihood that a negotiated resolution will include measures designed to promote competition and the ability of the regulator to use the savings to increase the likelihood of other contraveners being detected and brought before the courts.

(2)    NW Frozen Foods does not mean that a court must commence its reasoning with the penalty proposed by the parties and then limit itself to a consideration of whether the penalty proposed is within the range of permissible penalties. That is one option, but another is to begin with an independent assessment of the appropriate range of penalties and then compare it with the proposed penalty.

(footnotes omitted)

Their Honours went on to further conclude in relevant part (at 507 to 508):

[58]    ... There is, however, no reason in principle or practice why civil penalty proceedings should be treated as an exception. Subject to the court being sufficiently persuaded of the accuracy of the parties’ agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and ... highly desirable in practice for the court to accept the parties’ proposal and therefore impose the proposed penalty ...

[59]    ... Once it is understood that civil penalties are not retributive, but like most other civil remedies essentially deterrent or compensatory and therefore protective, there is nothing odd or exceptionable about a court approving an agreed settlement of a civil proceeding which involves the public interest; provided of course that the court is persuaded that the settlement is appropriate.

37    In the present case, the manner in which consideration has been given to the agreed position of the parties is to start with an independent assessment that the penalties proposed would be within what would otherwise be considered as a “permissible range”, albeit an assessment very much informed by “instinctive synthesis. That initial assessment has thereafter been reconsidered – or separately “tested by reference to a broad review of the factors summarised by Tracey J in Kelly v Fitzpatrick with a view to determining whether the agreed penalties are appropriate. Approached in that manner, it has been concluded that the agreed penalties should be imposed when consideration is given to (in particular) the following factors:

    the prior contraventions by the former Maritime Union of Australia, being contraventions in 2010 and 2012 and the prior contraventions by the CFMMEU in 2015 and 2017 in respect to activities at container terminals;

    the prior contraventions of s 417 by Mr McAleer in 2012 and 2017 and the fact that he occupies a senior position within the Sydney Branch of the CFMMEU;

    the fact that the unlawful industrial action in the present case was deliberate, insofar as the conduct was itself a conscious decision to cease work;

    the absence of contrition; and

    the need for the quantum of the penalties imposed to act as both a general and specific deterrence and not to be regarded as merely the “cost of doing business” (cf. Director, Fair Work Building Industry Inspectorate [2015] HCA 46 at [110], (2015) 258 CLR at 523 to 524 per Keane J; Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232 at [35] per Barker J).

The fact that:

    the agreement between the parties came only shortly before the commencement of the proceeding, assumes a more neutral relevance – the contraventions being alleged were, over time, narrowed by the Applicant and (in particular) involved the abandonment in the Further Amended Statement of Claim of the previously alleged contravention of s 421 of the Fair Work Act.

Uninformed by the agreement between the parties, penalties greater than those agreed may have been imposed. But no conclusion can be reached that the penalties as agreed are not appropriate.

CONCLUSIONS

38    The penalties as agreed between the parties should be imposed.

39    Effect should also be given to the form of declaratory relief as jointly proposed by the parties.

THE COURT DECLARES THAT:

1.    The First Respondent contravened s 417(1) of the Fair Work Act 2009 (Cth) by organising industrial action taken by employees of Patrick Stevedores Holdings Pty Ltd at Port Botany NSW in the form of a refusal to perform work on the day, evening and night shifts of 14 April 2018, and on the night shift ending on 16 April 2018, prior to the nominal expiry date of the Patrick Terminals Enterprise Agreement 2016.

2.    The Second Respondent contravened s 417(1) of the Fair Work Act 2009 (Cth) by organising industrial action taken by employees of Patrick Stevedores Holdings Pty Ltd at Port Botany NSW in the form of a refusal to perform work on the day, evening and night shifts of 14 April 2018, and on the night shift ending on 16 April 2018, prior to the nominal expiry date of the Patrick Terminals Enterprise Agreement 2016.

THE COURT ORDERS THAT:

3.    A pecuniary penalty of $30,000 is imposed on the First Respondent pursuant to s 546 of the Fair Work Act 2009 (Cth) in respect of the contravention referred to in the Declaration in paragraph 1 above.

4.    A pecuniary penalty of $6,000 is imposed on the Second Respondent pursuant to s 546 of the Fair Work Act 2009 (Cth) in respect of the contravention referred to in the Declaration in paragraph 2 above.

5.    The above penalties are to be paid to the Applicant in accordance with s 546(3) of the Fair Work Act 2009 (Cth) within 30 days of the date of this order.

6.    The primary proceeding is otherwise dismissed.

7.    The Cross-claim is dismissed.

8.    There is no order as to costs in respect of either the primary proceeding or the Cross-claim.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate:

Dated:    9 October 2019