FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The NewCold Picket Case) [2019] FCA 2038

ORDERS

PENAL NOTICE

THE COURT DECLARES THAT:

1.    The second respondent (Mr Perkovic), being an officer of the first respondent (the CFMMEU) and acting in that capacity for the purposes of s 94 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (the BCIIP Act), contravened s 47(1) of the BCIIP Act on 8 May 2017 by engaging in an unlawful picket at the NewCold 1 Site, located at Agar Drive, Truganina in Victoria (First Contravention).

2.    The third respondent (Mr Pearson), being an officer of the CFMMEU and acting in that capacity for the purposes of section 94 of the BCIIP Act, contravened s 47(1) of the BCIIP Act on 8 May 2017 by engaging in an unlawful picket at the NewCold 2 Site, located at Agar Drive, Truganina in Victoria (Second Contravention).

3.    The fourth respondent (Mr Raspudic), being a member of the CFMMEU and by his conduct being authorised by Mr Pearson in his capacity as an officer of the CFMMEU for the purposes of s 94 of the BCIIP Act, contravened s 47(1) of the BCIIP Act on 8 May 2017 by engaging in an unlawful picket at the NewCold 2 Site (Third Contravention).

4.    In respect of the First Contravention, the CFMMEU is taken to have contravened s 47(1) of the BCIIP Act on 8 May 2017 by operation of ss 94(1)(a), 94(2), 95(1)(b) and 95(3) the BCIIP Act (First CFMMEU Contravention).

5.    In respect of the Second and Third Contraventions, the CFMMEU is taken to have contravened s 47(1) of the BCIIP Act on 8 May 2017 by operation of ss 94(1)(a), 94(2), 95(1)(b) and 95(3) of the BCIIP Act (Second CFMMEU Contravention).

6.    The CFMMEU contravened s 77(3) of the BCIIP Act by failing to comply with a notice to produce records or documents issued by an Australian Building and Construction Inspector under s 77(1) of the BCIIP Act on or around 2 October 2017 (Third CFMMEU Contravention).

THE COURT ORDERS THAT:

7.    Mr Perkovic pay a pecuniary penalty of $20,000 in respect of the First Contravention.

8.    Mr Pearson pay a pecuniary penalty of $20,000 in respect of the Second Contravention.

9.    Mr Raspudic pay a pecuniary penalty of $15,000 in respect of the Third Contravention.

10.    The CFMMEU pay the following pecuniary penalties:

(a)    $100,000 in respect of the First CFMMEU Contravention;

(b)    $100,000 in respect of the Second CFMMEU Contravention; and

(c)    $15,000 in respect of the Third CFMMEU Contravention.

11.    Each of the pecuniary penalties is to be paid to the Commonwealth of Australia within 28 days.

12.    The proceeding is otherwise dismissed.

13.    The respondents pay the applicant’s costs of the proceeding.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1    The applicant (the Commissioner) seeks declarations that the respondents contravened ss 47(1) and 77(3) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (the Act or the BCIIP Act), and the imposition of pecuniary penalties on them in relation to their respective contraventions of it.

2    By its amended defence to the Commissioner’s amended statement of claim, the respondents admit each allegation made against them, including the particulars.

3    Annexure A to these reasons is the text of the amended statement of claim.

4    The Commissioner seeks:

(a)    declarations of contraventions of s 47(1) of the Act by each of the respondents;

(b)    a declaration of a contravention of s 77(3) of the Act by the first respondent (the CFMMEU);

(c)    the imposition of appropriate pecuniary penalties upon each of the respondents for contraventions of the Act;

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

(e)    a personal payment order against the second respondent (Mr Perkovic) and the third respondent (Mr Pearson); and

(f)    his costs.

5    The respondents concede (a), (b), (d) and (f). As to (c), they agree that the court must impose penalties, but say that they should be at the lower or mid end of the scale (not the higher end, as the Commissioner contends), and that the course of conduct principle applies in relation to the CFMMEU’s contraventions of s 47(1). The respondents also submit that there is no power under s 81 of the Act to impose a personal payment order, or that if there is, such an order should not be made.

The relevant provisions of the Act

6    The main object of the Act is described in s 3, as follows:

Main object of this Act

(1)    The main object of this Act is to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively, without distinction between interests of building industry participants, and for the benefit of all building industry participants and for the benefit of the Australian economy as a whole.

(2)    This Act aims to achieve its main object by the following means:

(a)    improving the bargaining framework so as to further encourage genuine bargaining at the workplace level;

   (b)    promoting respect for the rule of law;

   (c)    ensuring respect for the rights of building industry participants;

(d)    ensuring that building industry participants are accountable for their unlawful conduct;

(e)    providing effective means for investigating and enforcing this Act, designated building laws (to the extent that those laws relate to building work) and the Building Code;

   (f)    improving work health and safety in building work;

(g)    encouraging the pursuit of high levels of employment in the building industry, including by encouraging youth employment with an emphasis on engaging apprentices;

(h)    providing assistance and advice to building industry participants in connection with their rights and obligations under this Act, designated building laws and the Building Code.

7    Section 47 of the Act provides:

Unlawful picketing prohibited

(1)    A person must not organise or engage in an unlawful picket.

Note: Grade A civil penalty.

(2)    An unlawful picket is action:

(a)    that:

(i)    has the purpose of preventing or restricting a person from accessing or leaving a building site or an ancillary site; or

(ii)    directly prevents or restricts a person accessing or leaving a building site or an ancillary site; or

(iii)    would reasonably be expected to intimidate a person accessing or leaving a building site or an ancillary site; and

(b)    that:

(i)    is motivated for the purpose of supporting or advancing claims against a building industry participant in respect of the employment of employees or the engagement of contractors by the building industry participant; or

(ii)    is motivated for the purpose of advancing industrial objectives of a building association; or

(iii)    is unlawful (apart from this section).

8    Section 77 of the Act provides:

Power to require persons to produce records or documents

(1)    An authorised officer may require a person, by notice, to produce a record or document to the authorised officer.

Note: See also sections 79 (power to keep records or documents) and 102 (self-incrimination).

 (2)    The notice must:

   (a)    be in writing; and

   (b)    be served on the person; and

(c)    require the person to produce the record or document at a specified place within a specified period of at least 14 days.

 (3)    The person must comply with the notice.

Note: Grade B civil penalty.

(4)    Subsection (3) does not apply if the person has a reasonable excuse.

9    The Act also contains the following relevant definitions:

“Grade A civil remedy provision” means:

(a)    a section of this Act (other than a section that is divided into subsections) that has a note at its foot stating “Grade A civil penalty”; or

(b)    a subsection of this Act that has a note at its foot stating “Grade A civil penalty”.

Note: The maximum penalty for a Grade A civil remedy provision is 1,000 penalty units for bodies corporate, and otherwise 200 penalty units (see subsection 81(2)).

“Grade B civil remedy provision” means:

(a)    a section of this Act (other than a section that is divided into subsections) that has a note at its foot stating “Grade B civil penalty”; or

(b)    a subsection of this Act that has a note at its foot stating “Grade B civil penalty”.

Note: The maximum penalty for a Grade B civil remedy provision is 100 penalty units for bodies corporate, and otherwise 20 penalty units (see subsection 81(2)).

10    Section 81 of the Act provides:

Penalty etc. for contravention of civil remedy provision

(1)    A relevant court, on application by an authorised applicant, may make one or more of the following orders relating to a person (the defendant) who has contravened a civil remedy provision:

  (a)    an order imposing a pecuniary penalty on the defendant;

(b)    an order requiring the defendant to pay a specified amount to another person as compensation for damage suffered by the other person as a result of the contravention;

              (c)    any other order that the court considers appropriate.

Note: An authorised applicant may not be able to make an application for an order if there is an enforceable undertaking in force or a compliance notice has been given (see subsections 98(4) and 99(5)).

Maximum penalty for civil remedy provisions

(2)    The maximum pecuniary penalty is:

(a)    for a Grade A civil remedy provision–1,000 penalty units if the defendant is a body corporate and otherwise 200 penalty units; and

(b)    for a Grade B civil remedy provision–100 penalty units if the defendant is a body corporate and otherwise 20 penalty units.

Injunctions

(3)    The orders that may be made under paragraph (1)(c) include:

   (a)    injunctions (including interim injunctions); and

(b)    any other orders that the court considers necessary to stop the conduct or remedy its effects, including orders for the sequestration of assets.

(4)    If the contravention is a contravention of section 46 or 47 (unlawful industrial action and picketing prohibited), then the power of the court to grant an injunction restraining a person (the defendant) from engaging in conduct may be exercised:

(a)    whether or not it appears to the court that the defendant intends to engage again, or to continue to engage, in conduct of that kind; and

(b)    whether or not the defendant has previously engaged in conduct of that kind; and

(c)    whether or not there is an imminent danger of substantial damage to any person if the defendant engages in conduct of that kind.

Pecuniary penalties

(5)    A pecuniary penalty under paragraph (1)(a) is payable to the Commonwealth, or to some other person if the court so directs. It may be recovered as a debt.

(6)    In determining a pecuniary penalty under paragraph (1)(a), the court must take into account all relevant matters, including:

   (a)    the nature and extent of the contravention; and

(b)    the nature and extent of any loss or damage suffered because of the contravention; and

   (c)    the circumstances in which the contravention took place; and

(d)    whether the person has previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct.

(7)    The Consolidated Revenue Fund is appropriated for the purposes of a debt due to a person other than the Commonwealth in relation to a penalty under paragraph (1)(a).

Relevant principles

11    On the question of assessing the appropriate penalties, the parties agreed that the principles applied in cases arising under the Fair Work Act 2009 (Cth) (the FW Act) apply here.

12    It is not necessary to engage in an extended discussion of those principles. They are sufficiently explained for present purposes in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155 at 167-168, [19]-[22] (Allsop CJ, White and O’Callaghan JJ):

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 … Retribution, denunciation and rehabilitation have no part to play.

Relevant factors in the overall assessment of penalty … 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 …

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

13    See also Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; (2018) 363 ALR 246 at 288, [176] (Allsop CJ, Collier and Rangiah JJ):

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

14    To the extent that submissions urged on behalf of the Commissioner sought to cavil with these statements of principle, and to contend that proportionality has no role to play in the circumstances of recidivist offending, I am unable to accept those submissions. In my view, the statements of principle are both binding on a single judge and correct.

15    In assessing the proper level of penalties, it is, of course, necessary to have regard to the maximum penalty.

16    The maximum penalty for each contravention here is:

(a)    200 penalty units for each of Messrs Perkovic, Pearson and Raspudic’s contraventions of s 47(1);

(b)    1000 penalty units for each of the CFMMEU’s contraventions of s 47(1); and

(c)    100 penalty units for the CFMMEU’s contravention of s 77(3).

17    A “penalty unit” is defined in section 4AA of the Crimes Act 1914 (Cth). At the time the contravening conduct occurred, the value of a penalty unit was $180. Accordingly, the maximum penalty that might be imposed for the CFMMEU is $180,000 for each s 47(1) contravention and $18,000 for the s 77(3) contravention. The maximum penalty that might be imposed for each contravention by Messrs Perkovic, Pearson and Raspudic is $36,000.

18    As the Full Court said in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155, quoting from the decision of the Full Court in Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 at 63, [154]-[156] (Yates, Jagot and Bromwich JJ):

In considering the sufficiency of a proposed civil penalty, regard must ordinarily be had to the maximum penalty. In Markarian [v The Queen (2005) 228 CLR 357], a criminal sentencing context, it was observed at [31] that:

careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.

The reasoning in Markarian about the need to have regard to the maximum penalty when considering the quantum of a penalty has been accepted to apply to civil penalties in numerous decisions of this Court both at first instance and on appeal … As Markarian makes clear, the maximum penalty, while important, is but one yardstick that ordinarily must be applied.

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.

19    It is convenient at this point to summarise the relevant admitted facts.

The unlawful picketing

Site No 1

20    At about 5.45am on 8 May 2017, Mr Perkovic and three or four other men stood next to a black Sports Utility Vehicle (SUV) which was parked across the entry gate (the Entry Gate) blocking vehicular access to the NewCold 1 Site. The SUV was registered to the CFMMEU.

21    From then until 10.45am, Mr Perkovic and the other men prevented or restricted, or attempted to prevent or restrict, persons and vehicles from entering or leaving the NewCold 1 Site as follows:

(1)    Ray Perry, a Director of NewCold, was prevented from driving into the NewCold 1 Site at around 7.20am – he entered the site by foot.

(2)    Raheel Aziz, a Security Guard at Oliver Ramsay, was restricted from exiting the NewCold 1 Site with his vehicle and was required to leave through a gap in the fence at around 9.00am.

(3)    Markoen Flos, a Project Manager at NewCold 1, was prevented from driving into the NewCold 1 Site at around 10.15am, so he elected to go home.

(4)    NewCold and Hansen Yuncken staff who were scheduled to work on the NewCold 1 Site were restricted from entering the NewCold 1 Site and parked along the left side fence of the Entry Gate between around 5.45am and 10.45am and staff were otherwise able to enter the site by foot.

22    At about 7.20am, Mr Perry asked Mr Perkovic what the problem was. Mr Perkovic said “it is an RDO today. The site has worked the last two RDOs and we [the CFMEU] are not going to allow it again” and that during the last two RDOs “you guys worked without our agreement”. Mr Perry said that his prime concern was hosting a visit from a “potential customer” at NewCold 2. Mr Perkovic said “you will need to talk to Kane [Pearson] who is at the other site” and “tell Kane that you have discussed it with me”.

23    Fifteen minutes later Brandon Finucane, a Senior Project Manager at Hansen Yuncken, had a conversation with Mr Perkovic as follows. Mr Perkovic said that “today is an RDO and as no work permit has been submitted or approved by the CFMEU works are not permitted on site today”. Mr Finucane said “the only people trying to gain access are Hansen Yuncken / NewCold office staff and a few non EBA workers”. Mr Finucane told Mr Perkovic that he was trespassing on private land and requested that he clear the gate area to permit access. Mr Perkovic declined Mr Finucane’s request.

24    At about 8.00am, Michael Williams, an Industrial Manager at Hansen Yuncken, and Mr Finucane approached the Entry Gate, following which Mr Perkovic and the other men (the Group) surrounded Mr Williams and Mr Finucane. Mr Williams said that they were trespassing. One of the Group said to Mr Williams “piss off, we’re here, we’re staying”. Mr Williams said that the Group was trespassing and that they were to clear the Entry Gate and provide access to the site. Mr Perkovic said “we won’t be doing that”.

25    At about 9.00am, Mr Finucane and Chris Sheers, a Construction Manager at Hansen Yuncken, had a conversation with Mr Perkovic at the NewCold 1 Site. Mr Perkovic said “no one should be working on an RDO”; Mr Sheers said to Mr Perkovic “it’s only Hansen Yuncken staff working and non-EBA subbies working and they need to have access to the site”; and Mr Perkovic then said that he had lost the keys to the car.

26    At approximately 10.45am or a short time after, the Group and the SUV left the NewCold 1 Site.

Site No 2

27    At about 6.15am on the same day, Messrs Pearson, Raspudic and approximately three other men attended the NewCold 2 Site, at which time Ben Tobin, Site Manager at Hansen Yuncken, had a conversation with Mr Pearson as follows. Mr Pearson asked who was working on the RDO and said that Hansen Yuncken had not “applied for dispensation”. Mr Tobin said that there weren’t any Hansen Yuncken employees working that day and they were not required to notify the CFMEU as per the “current EBA agreement in place”. Mr Pearson replied “that’s [Mr Sheers’] interpretation of the EBA and the dispensation protocol”. And Mr Tobin asked Mr Pearson to see his and the other men’s right of entry permits, to which Mr Pearson responded “we’ll see how this plays out”.

28    About an hour later, Mr Perry had a conversation with Mr Pearson. Mr Pearson said that “the site is shut because it is an RDO”. Mr Pearson said that NewCold is “diluting the EBA”. And Mr Perry said that NewCold needed to get the job finished, to which Mr Pearson responded “it could take even longer”.

29    About 15 minutes after that, Messrs Pearson, Raspudic and approximately three other men stood next to a black Sports Utility Vehicle (Second SUV) which was parked across the driveway blocking vehicular access to the NewCold 2 Site. The Second SUV was also registered to the CFMEU.

30    Between approximately 7.30am and 11.30am, Messrs Pearson, Raspudic and the three other men prevented or restricted, or attempted to prevent or restrict, persons and vehicles from entering the NewCold 2 Site as follows:

(1)    At approximately 7.55am, Simon Taylor, Vice President Operations at NewCold, was prevented or restricted from driving his vehicle into the NewCold 2 Site and was required to walk past the NewCold 2 Blockade to enter the NewCold 2 Site. He entered the site by foot.

(2)    Employees of a potential customer of NewCold, Parmalat, were prevented     from driving their vehicle into the NewCold 2 Site and were required to walk past the NewCold 2 Blockade to enter the NewCold 2 Site. These employees entered the site by foot.

(3)    A number of concrete trucks were prevented or restricted from driving into the NewCold 2 Site from the main entrance and had to enter the site through an alternate entry.

(4)    A director and an employee or contractors of Abseal Pty Ltd were prevented from driving their vehicle into the NewCold 2 Site and entered the site by foot by walking past the Newcold 2 Blockade.

(5)    A Gencare employee or contractor was prevented or restricted from driving his vehicle into the NewCold 2 Site and entered the site by foot by walking past the Newcold 2 Blockade.

(6)    Persons scheduled to work on the NewCold 2 Site were prevented or restricted from entering the NewCold 2 Site in their vehicles and parked along the side of the road outside of the NewCold 2 Site.

(7)    At around 10.45am, a Skyreach employee or contractor was prevented or restricted from driving a vehicle into the NewCold 2 Site and entered the site by foot by walking past the Newcold 2 Blockade.

31    At about 7.30am, Mr Tobin had a conversation with Mr Pearson. Mr Tobin said “what are you doing parking across the road, you are blocking the traffic”. Mr Pearson said that the car was broken down and that he could not move it. Mr Tobin asked Mr Pearson whether he had called for a tow truck or if he wanted Mr Tobin to call one for him. And Mr Pearson replied that he had not called a tow truck but “by all means you can call one for me”.

32    About 25 minutes after that, Mr Taylor had a conversation with one of the men participating in the NewCold 2 Blockade. Mr Taylor asked if he could get onto the site, to which one of the men replied “no, no one is supposed to be working on an RDO day”. Mr Taylor said that he was there to see a client and wanted the client to come onto the site; one of the men replied with words to the effect of “it doesn’t matter. It’s an RDO. You can park your car in the street and walk in”. The other men crowded around Mr Taylor and one or more of the other men said to Mr Taylor words to the effect of “rules are rules and people are not allowed to work on an RDO”.

33    About 20 minutes later, Michael Williams, Industrial Manager at Hansen Yuncken, attended the driveway to the NewCold 2 Site and was approached by Messrs Pearson, Raspudic and three other men. Mr Williams said “you and your comrades have no legal right to be blockading site. I know that you don’t hold an appropriate permit so you should remove yourself, your comrades and [the Second SUV] from this site”; and Mr Pearson refused to move.

34    At some time that morning, Mr Williams attempted to enter the NewCold 2 Site with Michael Kostal, Director of Abseal, and one of Abseal’s employees or contractors, during which the following conversation took place. Mr Pearson asked Kostal and the Abseal worker whether they had an EBA, to which Mr Kostal replied “yes mate”. Mr Pearson said “well today’s an RDO. Have you put in your permits?” Mr Kostal asked what permit Pearson meant, to which Mr Pearson replied “if you want to work on an RDO you have to put in for permits”. Mr Williams, Kostal and the Abseal worker then entered the site by foot.

High-fives

35    From about 11.00am to 11.30am, Mr Perkovic and the Group arrived in the SUV at the NewCold 2 Site, got out of the SUV and gave “high fives” to Messrs Pearson, Raspudic and the three other men near the Second SUV.

Prior penalties

36    The Commissioner relied on schedules of prior penalties and declarations under industrial laws involving the CFMMEU, Mr Perkovic and Mr Pearson. They are attached to these reasons as Annexure B.

Consideration

37    The events at the two sites involved different individuals and they did not overlap factually, aside from the “high fives” when they met at the end of the picketing. It is true that the two contraventions occurred for a common end (as senior counsel for the respondents put it, “the way RDOs are to be treated with respect to an applicable EBA”) and at around the same time, but otherwise they were clearly enough two contraventions, one at each site or gate.

38    I accept the CFMMEU’s submission that the contraventions of Mr Pearson and Mr Raspudic, which it is agreed are to be attributed to it, arose from the same course of conduct. As counsel put it in their written submissions:

They were both present at the same part of the NewCold site and engaged in the same actions in standing next to the black sports utility vehicle. They were motivated by the same purpose for the purposes of s 47(b)(ii) of the BCIIP Act, namely, advancing the industrial objective of the CFMMEU in ensuring that work did not occur on a designated rostered day off without the CFMMEU’s permission. Their actions were directed at the same entities: NewCold and Hansen Yuncken. The consequences of their actions were the same, viz., people were restricted from accessing or leaving the site for a short period of time. There was clearly an interrelationship between the legal and factual elements of Mr Pearson and Mr Raspudic’s contraventions. It follows that the CFMMEU should be taken to have engaged in a single course of conduct in relation to the actions of these officials.

39    I therefore accept the CFMMEU’s (alternative) submission that it is to be treated as having engaged in a single course of conduct vis a vis the contraventions by Mr Pearson and Mr Raspudic, and to have committed a separate contravention by reason of Mr Perkovic’s conduct. See generally Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 at 91-92, [111]-[116].

40    The respondents submitted that there being no allegations that any persons (as opposed to vehicles) were directly prevented from entering the sites for the purposes of s 47(1)(a)(ii), or that the action undertaken by the respondents would reasonably have been expected to intimidate anyone for the purposes of s 47(1)(a)(iii), or that the action was unlawful apart from the contravention of s 47(1) of the Act itself for the purposes of s 47(2)(b)(iii), “points to the objective seriousness of the contravening conduct being of a lower order”.

41    The respondents’ submissions continued in relation to the contravention involving Mr Perkovic at the NewCold 1 site as follows:

… no staff scheduled to work were prevented from entering that site. Rather, the effect of the actions of Mr Perkovic was to cause inconvenience, as persons wishing to enter the site in vehicles had to park their vehicles outside the site before entering the site on foot. Other individuals also entered the site by foot or left by alternative exits.

The contravention pleaded is that the actions of Mr Perkovic directly restricted, rather than prevented, persons from accessing or leaving the NewCold 1 site. People were not prevented from entering the site. To the extent the contrary is suggested by the ABCC in its submissions at [14], that submission is contrary to the pleaded case and should be rejected. The more limited submission made by the ABCC in the same paragraph (to the effect that Hansen Yuncken staff were restricted from entering by vehicle and forced to access the site by foot) is accepted.

There is no allegation (or evidence) that the ‘unlawful picket’ actually affected the activities, functions or business of NewCold or Hansen Yuncken. Finally, no allegation is made that Mr Perkovic’s actions would reasonably have been expected to intimidate a person accessing or leaving the site or an ancillary site.

42    As to the NewCold 2 site, the respondents’ submissions were as follows:

Similarly, the contraventions involving Mr Pearson and Mr Raspudic at the ‘NewCold 2 site’ did not prevent persons entering that site. People who were unable to drive their vehicles into the site via the entrance blocked by Mr Pearson and Mr Raspudic entered the site by foot or alternative routes. Employees scheduled to work parked their vehicles along the side of the road outside the site and walked into the site. Some people seeking to enter the site walked around the picket. The effect of Mr Pearson and Mr Raspudic’s actions was therefore to only to restrict or impede, rather than prevent, persons entering or exiting the site. Like Mr Perkovic, the effect of their actions was to cause inconvenience. The suggestion at [15] of the ABCC’s submissions that persons were prevented from entering the site is contrary to its pleaded case and must be rejected.

There is also no allegation that the picket actually affected the activities, functions or business or NewCold or Hansen Yuncken. Moreover, there is no assertion that the action would reasonably have been expected to intimidate a person accessing or leaving the site or an ancillary site.

(Footnotes omitted).

43    The respondents also submitted that there was no evidence or suggestion that the contravening conduct which took place at the two sites “was part of a wider campaign” and that no profit or benefit was derived by any of the respondents from the contravening conduct.

44    The respondents also submitted that there is no evidence or pleaded allegation that any economic loss was suffered by NewCold or Hansen Yuncken and that “[t]here is no contention or pleading that any work was disrupted or disturbed by the conduct. Thus, while the actions of the respondents impinged the freedom of movement into and out of the NewCold sites, the Court cannot be satisfied that there was any impact on productivity or economic loss”.

45    It follows, so the respondents submit, that “[t]he nature and extent of the contravening conduct, the circumstances in which it occurred and the absence of economic impact on the contractor and subcontractor demonstrate that the contravening conduct falls at the lower end of the spectrum of seriousness for a s 47(1) contravention.”

46    The Commissioner submitted that “[e]ach of the contraventions [is] objectively serious” because they involved the deliberate, unlawful picketing of both sites which prevented or restricted persons from entering or leaving the sites for between 4 and 5 hours. Further, the Commissioner relies on the fact that employees of Parmalat, a potential customer of NewCold, were prevented from driving their vehicles to access the NewCold 2 Site and were forced to enter by foot. Trucks delivering concrete to the NewCold 2 Site were also prevented or restricted from driving into the NewCold 2 Site and had to enter by alternate means.

47    The Commissioner also submitted:

The presence or absence in a contravention of any element in sections 47(2)(a) or (b) does not of itself frame the seriousness of the contravention. The various elements in sections 47(2)(a) or (b) simply set out the different ways that s.47 may be contravened. There is nothing in s.47 itself, or in the BCIIP Act generally, that warrants elevating one type of contravention of s.47 as more serious than another because of which element in ss.47(2)(a) or (b) is established. The seriousness of the contravention will simply depend on the circumstances.

In any event, the unlawful picketing engaged in by each Respondent in this proceeding had both the required purpose and effect set out in ss.47(2)(a)(i) and (ii), and also involved two unlawful motivations as required by ss.47(2)(b)(i) and (ii). This does not point to the contravening conduct as being of a lower order.

…

The Respondents allege that no staff were prevented from entering the NewCold 1 Site. This submission must be rejected. The particulars to paragraph 12 of the Amended Statement of Claim, which are admitted by the respondents, provide that Mr Perry (Director) and Mr Flos (Project Manager) of NewCold were both in fact ‘prevented’ from driving onto the NewCold 1 Site. Perry was forced to enter the site by foot and Mr Flos returned home as a consequence of the NewCold 1 Blockade.

…

The Respondents allege this is not a case where economic loss can be inferred. The Applicant accepts that the disruption to the NewCold 1 Site and the NewCold 2 Site was not as significant as that in ABCC v CFMEU (2017) 249 FCR 458. However, the disruption need not be as severe in order for the Court to infer some economic loss or loss of productivity.

Contrary to the Respondents’ Submissions:

(a)    this is a case where managers were distracted from their duties, as indicated by:

i.    Flos not being able to enter the NewCold 1 Site by reason of the picket (see subparagraph (iii) of the particulars under paragraph 12 of the ASOC);

ii.    Ray Perry (Perry), Brandon Finucane, Michael Williams (Williams) and Chris Sheers were all distracted from their duties in dealing with the picketers at the NewCold 1 Site (see paragraphs 13 to 17 of the ASOC); and

iii.    Ben Tobin, Perry, Williams, Simon Taylor and Michael Kostal were all distracted from their duties in dealing with the picketers at the NewCold 2 Site (see paragraphs 35 to 42 of the ASOC), and

(b)    it can be inferred that the restrictions on personnel entering the site caused some loss of productivity …

48    It is true that Mr Perkovic and Mr Kane behaved with an apparent sense of impunity, including when Mr Pearson said that the car was broken down and that he could not move it and when Mr Perkovic said that he had “lost” his car keys. It is also true that a small number of people appear to have been dissuaded from entering through the two gates. I also accept the Commissioner’s submission that the seriousness of the contravention will depend on the circumstances of each case, not merely upon which of the criteria in s 47 of the Act are made out. It is also true that the conduct was deliberate and continued for up to five hours. It may also be inferred that some very small loss of productivity may have occurred.

49    All that said, it seems to me that the admitted conduct in contravention of s 47 of the Act is not, as the Commissioner contends, to be viewed as “serious”, such that it would warrant a penalty towards or at the maximum level.

50    In assessing the quantum of the penalties, I also take into account the utilitarian value of the admissions made by the respondents.

51    On the other hand, the CFMMEU is a large organisation with significant financial resources. It has a prior history that has been recorded and characterised in many decisions of this court over many years (which I need not repeat here), demonstrating its apparent willingness to contravene industrial laws in a serious way. And, of course, there is the need for deterrence of an organisation of its size.

52    Taking all those matters into account, I would impose a penalty on the CFMMEU of $100,000 in respect of each of the two contraventions by Mr Perkovic and Mr Pearson (and Mr Raspudic).

53    As to Mr Perkovic, Mr Pearson and Mr Raspudic, there was no evidence led about their financial situation.

54    Mr Perkovic and Mr Pearson have records of contraventions, set out at Annexure B. That said, Mr Pearson’s impugned conduct last occurred in November 2013 and Mr Perkovic’s in May 2014.

55    Taking all those matters into account, I would impose a penalty on each of Mr Perkovic and Mr Pearson of $20,000.

56    As to Mr Raspudic, he remained mute throughout his involvement in the picket. I would impose a lower penalty on him because of his lesser role. That penalty will be fixed at $15,000.

57    I should also say that in coming to these penalties, I have given consideration to whether the aggregate penalty exceeds what is proper having regard to the totality of the contravening conduct. In my view, it does not.

Personal payment order

58    The Commissioner submits that the court has power to impose a personal payment order pursuant to an implied power under s 81 of the Act. He submits that s 81(1)(a) of the Act is in relevantly the same terms as s 546(1) of the FW Act, and that such a power is to be implied in the same way that it was held to be implied into that section in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157.

59    The respondents disagree and point to “important textual differences” between s 81(1)(a) of the Act and s 546(1) of the FW Act. The submission was put this way:

Section 546(1) of the FW Act confers power to ‘order a person pay a pecuniary penalty that the court considers appropriate’. In contrast, s 81(1)(a) of the BCIIP Act reposes power in the Court to make an order ‘imposing a pecuniary penalty on the defendant’. The use of the active voice in s 546(1) is to be contrasted with the passive voice in s 81(1)(a). Section 546(1) empowers the Court to order that a person (the contravener) pay a penalty, which has been found to include the implied power to order that the person pay that penalty personally. Section 81(1)(a) goes only so far as to permit the imposition upon a defendant of a penalty. It says nothing concerning who shall pay.

The verb ‘to impose’ is used in s 81(1)(a) in distinction to the phrase ‘order to pay’ in s 546(1). To ‘impose’ is to lay or set as something to be borne, endured, obeyed or paid. To ‘order’ is to command or direct (ie that a person pay). The power to ‘order’ is, in terms, necessarily broader than the power to ‘impose’.

‘To pay’ is ‘to discharge by giving or doing something’. Section 546(1) of the FW Act confers power to command or direct ‘a person to pay’ a pecuniary penalty. The power to ‘order a person pay a pecuniary penalty’ is wider than a power to simply ‘impose a pecuniary penalty’. Incidental and ancillary to the power to order ‘a person to pay’ is the ability to direct or command the payment of the penalty by the person personally. It is not necessary or legally ancillary to a power to impose a penalty that there be implied a power to direct the payment of that penalty by a person personally, or in a particular way.

It follows that there is no power under s 81(1)(a) of the BCIIP Act to make a personal payment order. For completeness, it is noted that s 81(1)(c) of the BCIIP Act of course cannot supply a source of power to make a personal payment order. Section 81(1)(c) is in the same terms as s 545 of the FW Act, which it has been found cannot sustain such an order.

(Footnotes omitted).

60    The Commissioner replied to this submission as follows:

Section 546(1) of the FW Act gives power to the Federal Court to ‘order a person to pay a pecuniary penalty’. Section 81(1) of the BCIIP Act permits a relevant court to make ‘an order imposing a pecuniary penalty on the defendant’. The Respondents argue that s 546(1) of the FW Act uses the active voice, whereas 81(1) of the BCIIP Act uses a passive voice. To ‘order’ and to ‘make an order’ are both active voice (given the Court is the subject of each sentence). In any event, this argument raised by the Respondents does not assist in the interpretation of s 81(1)(a).

Further, the Respondents argue that while the Court can ‘order to pay’ under the FW Act, it can only ‘impose’ a penalty under the BCIIP Act, and that the power to order something is broader than the power to impose. This is not the language that the BCIIP Act uses. The BCIIP Act gives the Court the power to “make one or more of the following orders”, one of which is an order to impose a pecuniary penalty. The Court’s power is not limited to just “imposing” a penalty, it includes that making of an order to that effect. There is no difference in meaning between ordering a person to pay a penalty and making an order imposing a penalty on that person. As the Respondents themselves submit, the definition of the word “impose” includes something to “be paid”. Both provisions permit the Court to make an order, in effect, that the defendant have a pecuniary penalty visited upon them as a sanction for their contravention of a civil remedy provision.

Further, any difference in language does not justify a divergence in the application of the reasoning of the High Court in ABCC v CFMEU. In that case the Court relied on the well­established principle that every Court has an implied power to make such other orders are necessary for, or facilitative of, the types of orders that are expressly provided for. The terms “necessary” or “facilitative of” in connection with the implied power is understood as identifying a power to make orders which are reasonably required for, or legally ancillary to, the accomplishment of what is specifically and expressly provided to be done by the statute.

A majority of the Court concluded that s 546 imports an implied power to make such further orders (including personal payment orders) as are reasonably required for, or legally ancillary to, accomplishing the express power in s.546 of the FW Act to order a person pay a pecuniary penalty. Importantly, Keane, Nettle and Gordon JJ stated at [116]-[120] (emphasis added):

As has been observed, the principal object of an order that a person pay a pecuniary penalty under s 546 is deterrence: specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners. According to the orthodox sentencing conceptions as they apply to the imposition of civil pecuniary penalties, specific deterrence inheres in the sting or burden which the penalty imposes on the contravener. Other things being equal, it is assumed that the greater the sting or burden of the penalty, the more likely it will be that the contravener will seek to avoid the risk of subjection to further penalties and thus the more likely it will be that the contravener is deterred from further contraventions; likewise, the more potent will be the example that the penalty sets for other would-be contraveners and therefore the greater the penalty’s general deterrent effect.

…

Given that s 546 expressly empowers the court to order a specific person to pay a pecuniary penalty, it is no stretch to accept that there is power in s 546 to make orders designed to ensure that the person against whom the order is made cannot avoid the incidence of the penalty. It is to take too narrow a view of the purpose of s 546 to regard the provision as being concerned with no more than that an amount of money be paid by someone in discharge of a debt created by order of the court. Section 546 is not about the creation and collection of debts; it is about penalising a contravention of the law. It is to take too narrow a view of the extent of the power conferred by s 546 to deny that it extends to the making of orders designed to ensure that a particular person cannot defeat the purpose of an order that the person pay the penalty imposed on him or her.

The reasoning of the High Court in relation to the power to make a personal payment order pursuant to s 546 of the FW Act applies equally to s.81(1)(a) of the BCIIP Act. As with s.546, s 81(1) is about penalising a contravention of the law. Section 81(1)(a) provides for an order to be made imposing a pecuniary penalty “on the defendant”. Section 81(1)(a), on its terms, therefore makes it as equally clear as s.546 of the FW Act that it is upon the defendant that the consequence of an order to pay a pecuniary penalty is visited. Further, a civil penalty imposed by s 81(1)(a) of the BCIIP Act ought have no less an object of deterrence as does s.546.

Section 81(1)(a) imports an implied power to achieve the effect which the pecuniary penalty is calculated expressly by that section to achieve, that is, for the individual defendant to feel the sting or burden of the consequence of contravening a provision of the BCIIP Act.

61    I am inclined to think that there is force in the Commissioner’s submission. If the power is implied into s 546 of the FW Act in the manner explained by the High Court in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157, it is likely that it is also to be implied here, whatever fine linguistic distinctions may be drawn between the two provisions.

62    But on the view I take of the matter, it is unnecessary to decide that point here, because given that their prior offending took place some years ago, I would, in the particular circumstances of this case, decline to make such an order in respect of Mr Perkovic or Mr Pearson, assuming that there is power under the Act to make one.

The section 77 contravention

63    On 2 October 2017, Meredith Knight, an Australian Building and Construction Inspector, served a Notice to Produce Records or Documents dated 2 October 2017 (the Notice) on the CFMMEU pursuant to subsection 77(1) of the Act. The Notice was in writing and was sent to the CFMMEU office by registered post.

64    The Notice required the CFMMEU to provide originals or true copies of “[a]ny records and/or documents relating to [Mr] Raspudic’s membership of the CFMEU as at 8 May 2017”, by 3.00pm on 20 October 2017.

65    The CFMMEU has not, at any stage, produced any documents in response to the Notice, nor has it responded in any way in relation to it.

66    The Commissioner submits that the CFMMEU’s failure to comply with the notice served under s 77 of the Act should be characterised as “thumbing its nose” at the inspector, and as undermining the Commissioner’s ability to conduct investigations using the statutory powers available to it.

67    The CFMMEU submitted that the breach “fell below the middle of the range”, for these reasons:

There is no suggestion that the failure to comply with the s 77(1) notice impacted in any way on the ABCC’s investigation. The notice required production by 20 October 2017. There is nothing indicating why that date was significant or what impact the failure to produce by that date had on the ABCC’s investigation. There is no evidence of any loss or inconvenience sustained by the ABCC as a result of the contravention. Further, Mr Raspudic’s membership of the union was admitted in his Defence.

In these circumstances, it cannot sensibly be suggested that the nature and objective circumstances of the contravention were so egregious as to warrant imposition of the maximum penalty. Properly assessed, this contravening conduct falls below the middle of the range.

68    In my view, the CFMMEU’s refusal to comply with the Notice to Produce was serious. It has not proffered any “reasonable excuse” within the meaning of s 77(4) of the Act. Nor has it suggested that compliance with the notice would have been burdensome, or anything of the sort.

69    In my view, the absence of any proffered excuse, or any expression of contrition, reasonably leads to the conclusion that the refusal to comply was a deliberate and wanton “thumbing of the nose” at the regulator. As the Full Court explained in Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 at 58, [131]:

If a contravention does not involve any state of mind then it is for the party asserting any particular state of mind (be it a deliberate flouting of the law, recklessness, wilful blindness, “courting the risk”, negligence, or innocence or any other characterisation of state of mind) to prove its assertion. If, in the event, neither party discharges its onus to establish any particular state of mind in relation to the contraventions, the Court determines penalty on no more than the fact of the proscribed nature of the conduct (see, by analogy see R v Olbrich …(1999) 199 CLR 270 at [22] – [28]). However, if any degree of awareness of the actual or potential unlawfulness of the conduct is proved then, all other things being equal, the contravention is necessarily more serious. Such awareness may be able to be inferred from the very nature of the conduct or representations constituting the conduct. However absence of such proof does not establish a mitigatory state of mind (see, by analogy, R v Storey [1998] 1 VR 359 at 369, quoted with approval by the majority in Olbrich at [27]; see also [25]). It means only that the neutral state of mind required for liability has not been disturbed for the purposes of penalty. If a contravening party wishes to go beyond the neutral statutory state of mind for liability and positively assert a lack of consciousness of the character of the conduct for the purposes of penalty, that is a circumstance of mitigation which the contravening party must prove.

(Emphasis added).

70    I do not accept that it is relevant that the Commissioner does not point to any prejudice, or the like. It is equally irrelevant that the CFMMEU ultimately admitted that Mr Raspudic was a member of the union. Unless a penalty is set at the high end of the range where wilful defiance of an important statutory obligation is involved, as is the case here, there will be no effective deterrence, and the idea will get about that such obligations may effectively be ignored at will.

71    I would therefore impose a penalty of $15,000 for the admitted contravention of s 77 of the Act.

Associate:

Dated:    6 December 2019

ANNEXURE A

1.    The Applicant is:

(a)    a statutory appointee for the purposes of subsection 21(1) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (the BCIIP Act);

(b)    by reason of subsection 66(3) of the BCIIP Act, an Australian Building and Construction Inspector;

(c)    an ‘authorised applicant’ within the meaning of section 5 of the BCIIP Act; and

(d)    by reason of sub-paragraphs (a) to (c) above, a person with standing and authority to bring these proceedings under subsection 81(1) of the BCIIP Act.

2.    The First Respondent (CFMMEU) is and was at all relevant times:

(a)    an organisation of employees registered under section 26 of the Fair Work (Registered Organisations) Act 2009 (Cth) (the FW(RO) Act) and by reason of being so registered, a body corporate by reason of subsection 27(a) of that Act and a “constitutionally-covered entity” within the meaning of section 5 of the BCIIP Act;

(b)    an “industrial association” within the meaning of section 5 of the BCIIP Act, whose rules allow membership by “building employees” within the meaning of section 5 of the BCIIP Act;

(c)    capable of being sued in its registered name by reason of subsection 27(e) of the FW(RO) Act; and

(d)    by reason of sub-paragraphs (a) and (b) above, a “building association” and, therefore, a “building industry participant” within the meaning of section 5 of the BCIIP Act.

3.    The Second Respondent (Perkovic) is and was at all relevant times:

(a)    an organiser employed by the CFMMEU;

(b)    an officer of the CFMMEU within the meaning of section 5 of the BCIIP Act;

(c)    in relation to the action taken by Perkovic set out below, acting in his capacity as an officer of the CFMMEU; and

(d)    in relation to the conduct of Perkovic set out below, engaging in the conduct on behalf of the CFMMEU as an officer of the CFMMEU, within the scope of his actual or apparent authority.

4.    The Third Respondent (Pearson) is and was at all relevant times:

(a)    an organiser employed by the CFMMEU;

(b)    an officer of the CFMMEU within the meaning of section 5 of the BCIIP Act;

(c)    in relation to the action taken by Pearson set out below, acting in his capacity as an officer of the CFMMEU; and

(d)    in relation to the conduct of Pearson set out below, engaging in the conduct on behalf of the CFMMEU as an officer of the CFMMEU, within the scope of his actual or apparent authority.

5.    The Fourth Respondent (Raspudic) is and was at all relevant times a member of the CFMMEU.

NewCold Melbourne Group Ltd

6.    At all relevant times, NewCold Melbourne Holding Pty Ltd (NewCold):

(a)    was incorporated under the Corporations Act 2001 (Cth) (Corporations Act), and was therefore a “constitutionally-covered entity” within the meaning of section 5 of the BCIIP Act;

(b)    was, and acted in its capacity as, a trustee for the NewCold Melbourne Unit Trust;

(c)    for the benefit of the NewCold Melbourne Unit Trust:

(i)    contracted Hansen Yuncken Pty Ltd (Hansen Yuncken) to build or arrange the building of a refrigerated freezer distribution centre located at Agar Drive, Truganina (NewCold 1 Site); and

(ii)    legally owned the NewCold 1 Site;

(d)    was, and acted in its capacity as, a trustee for the NewCold Melbourne No. 2 Unit Trust;

(e)    for the benefit of the NewCold Melbourne No. 2 Unit Trust:

(i)    contracted Hansen Yuncken to build or arrange the building of a cold storage distribution centre located at Agar Drive, Truganina (NewCold 2 Site); and

(ii)    legally owned the NewCold 2 Site;

(f)    by reason of sub-paragraphs (b) to (e) above, was a “building industry participant” within the meaning of section 5 of the BCIIP Act.

7.    By reason of paragraph 6(c) above, at all material times, the NewCold 1 Site was a “building site” within the meaning of section 5 of the BCIIP Act.

8.    By reason of paragraph 6(e) above, at all material times, the NewCold 2 Site was a “building site” within the meaning of section 5 of the BCIIP Act.

Hansen Yuncken Pty Ltd

9.    At all relevant times, Hansen Yuncken Pty Ltd (Hansen Yuncken):

(a)    was incorporated under the Corporations Act, and was therefore a “constitutionally-covered entity” within the meaning of section 5 of the BCIIP Act;

(b)    employed persons who performed building work; and

(c)    by reason of sub-paragraphs 6(c), 6(e) and 9(b) above, was a “building contractor” and a “building employer” and, therefore, a “building industry participant” within the meaning of section 5 of the BCIIP Act.

8 MAY 2017: NEWCOLD 1 SITE

10.    8 May 2017 was a designated rostered day off (RDO) in the construction industry according to the CFMMEU construction industry calendar.

11.    At approximately 5.45am on 8 May 2017, Perkovic and approximately three or four other men stood next to a black Sports Utility Vehicle (SUV) which was parked across the entry gate (the Entry Gate) blocking vehicular access to the NewCold 1 Site.

Particulars

The SUV had the registration number plate 1HD 1ZX and was registered to the CFMMEU Construction and General Division Victorian Branch. The certificate of registration is available for inspection at the offices of the solicitor of the Applicant by prior appointment.

12.    Between approximately 5.45am and 10.45am on 8 May 2017, Perkovic and the three or four other men, in combination with the SUV, prevented or restricted, or attempted to prevent or restrict, persons and vehicles from entering or leaving the NewCold 1 Site (the NewCold 1 Blockade).

Particulars

(i)    Ray Perry (Perry), a Director of NewCold, was prevented from driving into the NewCold 1 Site at around 7.20am. The Applicant also refers to paragraph 13 below. Perry entered the site by foot.

(ii)    Raheel Aziz, a Security Guard at Oliver Ramsay, was restricted from exiting the NewCold 1 Site with his vehicle and was required to leave through a gap in the fence at around 9.00am.

(iii)    Markoen Flos, a Project Manager at NewCold 1, was prevented from driving into the NewCold 1 Site at around 10.15am. Markoen Flos elected to go home.

(iv)    NewCold and Hansen Yuncken staff who were scheduled to work on the NewCold 1 Site were restricted from entering the NewCold 1 Site and parked along the left side fence of the Entry Gate between around 5.45am and 10.45am. Staff were otherwise able to enter the site by foot.

13.    At approximately 7.20am on 8 May 2017, Perry had a conversation with Perkovic at the NewCold 1 Site as follows:

(a)    Perry asked Perkovic what the problem was;

(b)    Perkovic said to Perry words to the effect that “It is an RDO today. The site has worked the last two RDOs and we [the CFMMEU] are not going to allow it again” and also that during the last two RDOs “You guys worked without our agreement”;

(c)    Perry said that his prime concern was hosting a visit from a “potential customer” at NewCold 2; and

(d)    Perkovic said to Perry words to the effect that “You will need to talk to Kane who is at the other site” and “Tell Kane that you have discussed it with me”.

14.    At approximately 7.35am on 8 May 2017, Brandon Finucane (Finucane), a Senior Project Manager at Hansen Yuncken, had a conversation with Perkovic as follows:

(a)    Perkovic said words to the effect that “Today is an RDO and as no work permit has been submitted or approved by the CFMEU works are not permitted on site today.”;

(b)    Finucane said to Perkovic words to the effect that “The only people trying to gain access are Hansen Yuncken / NewCold office staff and a few non EBA workers”;

(c)    Finucane told Perkovic that he was trespassing on private land and requested that he clear the gate area to permit access; and

(d)    Perkovic denied Finucane’s request described above.

15.    At approximately 8.00am on 8 May 2017, Michael Williams (Williams), an Industrial Manager at Hansen Yuncken, and Finucane approached the Entry Gate, following which:

(a)    Perkovic and the three or four other men (the Group) surrounded Williams and Finucane;

(b)    Williams said to Perkovic and the Group that they were trespassing;

(c)    one of the Group said to Williams words to the effect “Piss off, we’re here, we’re staying.”;

(d)    Williams said words to the effect that the Group was trespassing and that they were to clear the Entry Gate and provide access to the site; and

(e)    Perkovic said words to the effect “We won’t be doing that.”

16.    At approximately 9.00am on 8 May 2017, Finucane and Chris Sheers (Sheers), a Construction Manager at Hansen Yuncken, had a conversation with Perkovic at the NewCold 1 Site as follows:

(a)    Perkovic said words to the effect that “No one should be working on an RDO”;

(b)    Sheers said to Perkovic words to the effect that “It’s only Hansen Yuncken staff working and non-EBA subbies working and they need to have access to the site”; and

(c)    Perkovic then said words to the effect that he had lost the keys to the car.

17.    At approximately 10.45am or a short time after, the Group and the SUV left the NewCold 1 Site.

Perkovic contravention of subsection 47(1) of the BCIIP Act

18.    As at 8 May 2017, the CFMMEU not wanting workers to perform building and construction work at the NewCold 1 Site on an RDO without the permission of the CFMMEU was:

(i)    a claim against NewCold and/or Hansen Yuncken in respect of the employment of their employees or the engagement of contractors for the purposes of subsection 47(2)(b)(i) of the BCIIP Act (the NewCold 1 RDO Claim); and/or

(ii)    an industrial objective of the CFMMEU for the purposes of section 47(2)(b)(ii) of the BCIIP Act (the NewCold 1 RDO Objective).

Particulars

The Applicant refers to paragraphs 10 and 13 to 16 above.

19.    Omitted

20.    Omitted

21.    Omitted

22.    The NewCold 1 Blockade:

(a)    had the purpose of preventing or restricting persons from accessing or leaving the NewCold 1 Site; and/or

(b)    directly restricted persons from accessing or leaving the NewCold 1 Site; …

Particulars

The Applicant refers to paragraphs 11 to 17 and 19 above and the particulars thereunder.

23.    The NewCold 1 Blockade:

(a)    was motivated for the purpose of supporting or advancing the NewCold 1 RDO claim; and/or

(b)    was motivated for the purpose of advancing the NewCold 1 RDO Objective; …

Particulars

The Applicant refers to paragraphs 10 to 17 above and the particulars thereunder.

24.    By reason of the above, the NewCold 1 Blockade was an unlawful picket within the meaning of subsection 47(2) of the BCIIP Act (the NewCold 1 Unlawful Picket).

25.    The NewCold 1 Blockade involved action taken by the CFMMEU.

Particulars

The Applicant refers to paragraphs 2, 3 and 11 to 17 above and paragraphs 30 to 32 below and the particulars thereunder.

26.    Further, or alternatively, the NewCold 1 blockade was action that:

(a)    …

(b)    was capable of affecting; and/or

(c)    was taken with intent to affect,

the activities, functions, or business of NewCold and/or Hansen Yuncken.

Particulars

The Applicant refers to paragraphs 6, 9, 11 to 17 and 19 above and the particulars thereunder.

27.    Further or alternatively, the NewCold 1 Blockade was action:

(a)    that consisted of encouraging;…

(b)    …

NewCold and/or Hansen Yuncken to accede to the NewCold 1 RDO Claim.

Particulars

The Applicant refers to paragraphs 10 to 23 above and the particulars thereunder.

28.    On 8 May 2017, Perkovic organised and/or engaged in the NewCold 1 Unlawful Picket.

Particulars

The Applicant refers to paragraphs 11 to 17 above and the particulars thereunder. Further, it can be inferred that Perkovic organised the unlawful picket given his role as an organiser of the CFMMEU and his role as spokesperson of the group of men engaging in the NewCold 1 Blockade.

Further and to the extent necessary, the Applicant also relies on sections 56 and 57 of the BCIIP Act.

29.    By reason of the above, Perkovic contravened subsection 47(1) of the BCIIP Act (Perkovic s.47(1) contravention).

CFMMEU contraventions of subsection 47(1) of the BCIIP Act: NewCold 1 Site

30.    The conduct of Perkovic on 8 May 2017 is taken to be conduct of the CFMMEU by reason of subsections 94(1)(a) and 95(1)(b) of the BCIIP Act.

Particulars

The Applicant refers to paragraph 3 above.

31.    To the extent necessary, the state of mind of Perkovic when engaging in the conduct on 8 May 2017 (including the NewCold 1 Blockade) is taken to be the state of mind of the CFMMEU by reason of subsections 94(2) and 95(3) of the BCIIP Act.

Particulars

The Applicant refers to paragraph 3 above.

32.    By reason of the above, the CFMMEU contravened subsection 47(1) of the BCIIP Act in relation to the Perkovic s.47(1) contravention.

33.    Omitted

8 MAY 2017: NEWCOLD 2 SITE

34.    At approximately 6.15am on 8 May 2017, Pearson, Raspudic and approximately three other men attended the NewCold 2 Site.

35.    At approximately 6.15am on 8 May 2017, Ben Tobin (Tobin), Site Manager at Hansen Yuncken, had a conversation with Pearson as follows:

(a)    Pearson asked who was working on the RDO and said that Hansen Yuncken had not “applied for dispensation”;

(b)    Tobin said that there weren’t any Hansen Yuncken employees working that day and they were not required to notify the CFMEU as per the “current EBA agreement in place”;

(c)    Pearson replied with words to the effect “That’s Chris’ [Sheers’] interpretation of the EBA and the dispensation protocol”; and

(d)    Tobin asked Pearson to see his and the other men’s right of entry permits, to which Pearson responded with words to the effect “We’ll see how this plays out”.

36.    At approximately 7.20am on 8 May 2017, Perry had a conversation with Pearson as follows:

(a)    Pearson said words to the effect that “The site is shut because it is an RDO”;

(b)    Pearson said words to the effect that NewCold is “diluting the EBA”; and

(c)    Perry said that NewCold need to get the job finished to which Pearson responded with words to the effect “It could take even longer”.

37.    At approximately 7.30am on 8 May 2017, Pearson, Raspudic and approximately three other men stood next to a black Sports Utility Vehicle (Second SUV) which was parked across the driveway blocking vehicular access to the NewCold 2 Site.

Particulars

The Second SUV had the registration number plate 1HD 1ZV and was registered to the CFMEU Construction and General Division Victorian Branch. The certificate of registration is available for inspection at the offices of the solicitors for the Applicant by prior appointment.

38.    Between approximately 7.30am and 11.30am on 8 May 2017, Pearson, Raspudic and the three other men, in combination with the Second SUV, prevented or restricted, or attempted to prevent or restrict, persons and vehicles from entering the NewCold 2 Site (the NewCold 2 Blockade).

Particulars

(i)    At approximately 7.55am, Simon Taylor (Taylor), Vice President Operations at NewCold, was prevented or restricted from driving his vehicle into the NewCold 2 Site and was required to walk past the NewCold 2 Blockade to enter the NewCold 2 Site. Taylor entered the site by foot.

(ii)    Employees of a potential customer of NewCold, Parmalat, were prevented from driving their vehicle into the NewCold 2 Site and were required to walkpast the NewCold 2 Blockade to enter the NewCold 2 Site. These employees entered the site by foot.

(iii)    A number of concrete trucks were prevented or restricted from driving into the NewCold 2 Site from the main entrance and had to enter the site through an alternate entry.

(iv)    A director and an employee or contractors of Abseal Pty Ltd (Abseal) were prevented from driving their vehicle into the NewCold 2 Site and…entered the site by foot by walking past the Newcold 2 Blockade. The Applicant refers to paragraphs 42 and 42A below.

(v)    A Gencare employee or contractor was prevented or restricted from driving his vehicle into the NewCold 2 Site and…entered the site by foot by walking past the Newcold 2 Blockade.

(vi)    Persons scheduled to work on the NewCold 2 Site were prevented or restricted from entering the NewCold 2 Site in their vehicles and parked along the side of the road outside of the NewCold 2 Site.

(vii)    At around 10.45am, a Skyreach employee or contractor was prevented or restricted from driving a vehicle into the NewCold 2 Site and … entered the site by foot by walking past the Newcold 2 Blockade.

39.    At approximately 7.30am, Tobin had a conversation with Pearson as follows:

(a)    Tobin said words to the effect “What are you doing parking across the road, you are blocking the traffic”;

(b)    Pearson said that the car’s broken down and he can’t move it;

(c)    Tobin asked Pearson whether he had called for a tow truck or did he want Tobin to call one for him; and

(d)    Pearson replied that he hadn’t called a tow truck but “by all means you can call one for me”.

40.    At approximately 7.55am on 8 May 2017, Taylor had a conversation with one of the men participating in the NewCold 2 Blockade as follows:

(a)    Taylor asked if he could get onto the site, to which one of the men replied “No, no one is supposed to be working on an RDO day”;

(b)    Taylor said that he was there to see a client and wanted the client to come onto the site;

(c)    one of the men replied with words to the effect “It doesn’t matter. It’s an RDO. You can park your car in the street and walk in”; and

(d)    the other men crowded around Taylor and one or more of the other men said to Taylor words to the effect “Rules are rules and people are not allowed to work on an RDO”.

41.    At approximately 8.20am on 8 May 2017, Michael Williams (Williams), Industrial Manager at Hansen Yuncken, attended the driveway to the NewCold 2 Site and was approached by Pearson, Raspudic and the three other men during which the following occurred:

(a)    Williams said words to the effect “You and your comrades have no legal right to be blockading site. I know that you don’t hold an appropriate permit so you should remove yourself, your comrades and [the Second SUV] from this site.”; and

(b)    Pearson refused to move.

42.    At some time in the morning of 8 May 2017, Williams attempted to enter the NewCold 2 Site with Michael Kostal (Kostal), Director of Abseal, and one of Abseal’s employees or contractors (Abseal worker) during which the following conversation took place:

(a)    Pearson asked Kostal and the Abseal…worker whether they had an EBA, to which Kostal replied “yes mate”;

(b)    Pearson said words to the effect “Well today’s an RDO. Have you put in your permits?”; and

(c)    Kostal asked what permit Pearson meant, to which Pearson replied words to the effect “If you want to work on an RDO you have to put in for permits”.

42A.    Williams, Kostal and the Abseal worker entered the site by foot.

43.    From approximately 11.00am to 11.30am, Perkovic and the Group arrived in the SUV at the NewCold 2 Site, exited from the SUV and gave “high fives” to Pearson, Raspudic and the three other men near the Second SUV.

Pearson contravention of subsection 47 of the BCIIP Act

44.    As at 8 May 2017, the CFMMEU not wanting workers to perform building and construction work at the NewCold 2 Site on an RDO without the permission of the CFMMEU was:

(a)    a claim against NewCold and/or Hansen Yuncken in respect of the employment of their employees or the engagement of contractors for the purposes of subsection 47(2)(b)(i) of the BCIIP Act (the NewCold 2 RDO Claim); and/or

(b)    an industrial objective of the CFMMEU for the purposes of subsection 47(2)(b)(ii) of the BCIIP Act (the NewCold 2 RDO Objective).

Particulars

The Applicant refers to paragraphs 10, 35 to 36 and 39 to 42 above and the particulars thereunder.

45.    Omitted

46.    Omitted

47.    Omitted

48.    The NewCold 2 Blockade:

(a)    had the purpose of preventing or restricting persons from accessing or leaving the NewCold 2 Site; and/or

(b)    directly restricted persons from accessing or leaving the NewCold 2 Site; and/or

(c)    ...

Particulars

The Applicant refers to paragraphs 35 to 42 above and the particulars thereunder.

49.    The NewCold 2 Blockade:

(a)    was motivated for the purpose of supporting or advancing the NewCold 2 RDO Claim;

(b)    was motivated for the purpose of advancing the NewCold 2 RDO Objective;…

(c)    …

Particulars

The Applicant refers to paragraphs 10, 34 to 42 above and the particulars thereunder.

50.    The NewCold 2 Blockade was an unlawful picket within the meaning of section 47(2) of the BCIIP Act (the NewCold 2 Unlawful Picket).

51.    The NewCold 2 Blockade involved action taken by the CFMMEU.

Particulars

The Applicant refers to paragraphs 2, 4, 5 and 34 to 45 above and paragraphs 58 to 62 below and the particulars thereunder.

52.    Further, or alternatively, the NewCold 2 Blockade was action that:

(a)    …

(b)    was capable of affecting; and/or

(c)    was taken with intent to affect,

the activities, functions, or business of NewCold and/or Hansen Yuncken.

Particulars

The Applicant refers to paragraphs 6, 9, 35 to 49 above and the particulars thereunder…

53.    Further or alternatively, the NewCold 2 Blockade was action:

(a)    that consisted of encouraging…

NewCold and/or Hansen Yuncken to accede to the NewCold 2 RDO Claim.

Particulars

The Applicant refers to paragraphs 10 and 34 to 49 above and the particulars thereunder.

54.    On 8 May 2017, Pearson organised and/or engaged in the NewCold 2 Unlawful Picket.

Particulars

The Applicant refers to paragraphs 4 and 34 to 42 above and the particulars thereunder. It can be inferred that Pearson organised the unlawful picket given his role as organiser at the CFMMEU and his role as spokesperson of the group of men engaging in the NewCold 2 Blockade.

Further and to the extent necessary, the Applicant also relies on sections 56 and 57 of the BCIIP Act.

55.    By reason of the above, Pearson contravened subsection 47(1) of the BCIIP Act (the Pearson s.47(1) contravention).

Raspudic contravention of subsection 47(1) of the BCIIP Act

56.    On 8 May 2017, Raspudic engaged in the NewCold 2 unlawful picket.

Particulars

The Applicant refers to paragraphs 34 to 42 above and the particulars thereunder.

57.    By reason of the above, Raspudic contravened subsection 47(1) of the BCIIP Act (the Raspudic s 47(1) contravention).

CFMMEU contraventions of subsection 47(1) of the BCIIP Act: NewCold 2 Site

58.    The conduct of Pearson on 8 May 2017 is taken to be conduct of the CFMMEU by reason of subsections 94(1)(a) and 95(1)(b) of the BCIIP Act.

Particulars

The Applicant refers to paragraph 4 above.

59.    Raspudic’s conduct on 8 May 2017 was authorised by Pearson in his capacity as an officer or agent of the CFMMEU.

Particulars

The Applicant refers to paragraphs 4, 5 and 34 to 42 above and the particulars thereunder.

60.    By reason of the above, Raspudic’s conduct on 8 May 2017 is taken to be conduct of the CFMMEU by reason of subsections 94(1)(b) and 95(1)(c) of the BCIIP Act.

61.    To the extent necessary, the state of mind of each of:

(a)    Pearson when engaging in his conduct on 8 May 2017; and

(b)    Raspudic when engaging in the conduct on 8 May 2017,

is taken to be the state of mind of the CFMMEU by reason of subsections 94(2) and 95(3) of the BCIIP Act.

Particulars

The Applicant refers to paragraphs 4 to 5 above.

62.    By reason of the above, the CFMMEU contravened subsection 47(1) of the BCIIP Act in relation to:

(a)    the Pearson s.47(1) contravention; and

(b)    the Raspudic s.47(1) contravention.

63.    Omitted

64.    Omitted

65.    Omitted

66.    Omitted

67.    Omitted

68.    Omitted

69.    Omitted

70.    Omitted

CFMMEU contravention of subsection 77(3) of the BCIIP Act

71.    On or around 2 October 2017, Meredith Knight, an Australian Building and Construction Inspector, served a Notice to Produce Records or Documents dated 2 October 2017 (the Notice) on the CFMMEU pursuant to subsection 77(1) of the BCIIP Act.

Particulars

The Notice was in writing and was sent to the CFMMEU office by registered post. The lodgement receipt for the registered post of the Notice is available for inspection at the offices of the Applicant’s solicitors by prior appointment.

72.    The Notice required the CFMMEU to provide originals or true copies of “Any records and/or documents relating to [Mario] Raspudic’s membership of the CFMEU as at 8 May 2017.” by 3.00pm on 20 October 2017.

73.    The CFMMEU has not, at any stage:

(a)    produced any documents in response to the Notice; nor

(b)    responded to the Applicant in any way in relation to the Notice.

74.    By reason of the matters alleged in paragraphs 71 to 73 above, the CFMMEU failed to comply with the Notice.

 75.    By reason of the above, the CFMMEU contravened subsection 77(3) of the BCIIP Act.

ATTACHMENT B

CONTRAVENTIONS OF INDUSTRIAL LAWS BY JOHN PERKOVIC

CONTRAVENTIONS OF INDUSTRIAL LAWS BY KANE PEARSON

SCHEDULE OF PARTIES