FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Australian Workers’ Union [2020] FCA 60

ORDERS

THE COURT ORDERS THAT:

1.    The respondent pay pecuniary penalties totalling $18,000.00.

2.    The penalties referred to above be paid to the Commonwealth within 28 days.

3.    There be no order as to costs.

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

REASONS FOR JUDGMENT

SNADEN J:

1    The respondent (hereafter, the “AWU”) is a well-known trade union. All times material to this proceeding, it was incorporated—and operated subject to rules that had effect—under the Fair Work (Registered Organisations) Act 2009 (Cth).

2    Amongst others, the AWU represents (or at least in 2015, represented) employees employed by Orica Pty Ltd (hereafter, “Orica”) at its manufacturing plant in Ballarat Road, Deer Park (hereafter, the “Deer Park Site”). Between January and September of 2015, the conditions of employment pertaining to those employees were regulated by an enterprise agreement forged under Pt 2-4 of the Fair Work Act 2009 (Cth) (hereafter, the “FW Act”).

3    That enterprise agreement nominally expired on 30 June 2014. Between January and September 2015, the AWU and Orica engaged in negotiations over the terms of a replacement agreement. On or about 25 February 2015—and within the context of those negotiations—the AWU gave notice to Orica of its intention to organise, and the intention of its members at the Deer Park Site to engage in, various forms of protected industrial action (within the meaning attributed to that phrase by s 408 of the FW Act). Specifically, the notice contemplated that the AWU’s members at the Deer Park Site would engage in two-hour work stoppages at 5:00am, 7:00am and 3:00pm on Tuesday, 3 March 2015 (that action is referred to, collectively and hereafter, as the “AWU Industrial Action”).

4    For the most part, the AWU Industrial Action took place. However, not all of the AWU’s members at the Deer Park Site participated in it. Two in particular—it is not necessary to identify them by name (they will be referred to, collectively and hereafter, as the “Relevant Employees”)—decided not to.

5    The Relevant Employees’ choice not to participate in the AWU Industrial Action caught the attention of Mr Sam Wood, who, at the time, was an officer and employee of the AWU’s. By correspondence dated 6 March 2015 and addressed to the secretary of the AWU’s Victorian branch, Mr Ben Davis, Mr Wood petitioned for “charges” to be brought against the Relevant Employees under r 19(2) of the AWU’s rules. That rule relevantly provided as follows:

(2)     Any member may charge any other member with:

…

(b)     failing to comply with any resolution or direction lawfully passed or given under any Rule of the Union after having notice thereof; [or]

…

(h)     gross misbehaviour;

…

6    On 16 March 2015, Mr Davis sent to each of the Relevant Employees a letter in the following terms (errors original):

Dear [name],

In accordance with Rule 19 of the AWU I am writing to you to inform you that AWU Organiser Sam Wood, on behalf of AWU members employed at Orica – Specialty Chemicals, has charged you with “gross misbehavior” in accordance with Rule 19(2)(H) and also with “failing to comply with any resolution or direction lawfully passed or given under any Rule of the Union after having notice thereof” in accordance with Rule 19(2)(B) of the AWU. I have attached Rule 19 for your information.

In particular it is alleged that you and two others have continued to work during a period of protected industrial action in defiance of resolutions at mass meetings of AWU members.

This is a very serious matter.

In accordance with the Rules you are hereby summoned to a meeting of the AWU Victorian Branch Committee of Management to defend these charges and explain your actions.

This meeting will be held on Monday 13th April at 10:00am.

If these charges are found to have been sustained then the AWU Victorian Branch Committee of Management has a number of options open to it including a fine, suspension of membership and/or expulsion from the Union.

Please read through the attached Rule 19 as it sets out your rights and obligations, as well as the process involved in these matters.

I am prepared to accept a written response or submission before the Branch Committee of Management meeting if you wish to send me one.

In Unity

BEN DAVIS

AWU Victorian Branch Secretary

7    On or about 29 April 2015, Mr Davis met with the Relevant Employees (and another Orica employee who had also opted not to engage in the AWU Industrial Action) to discuss with them the charges to which his 16 March letters referred (hereafter, the “Misconduct Charges”). During that meeting, Mr Davis indicated to both of the Relevant Employees that:

(1)    the AWU had the power to take the action that he had foreshadowed in his 16 March letters;

(2)    they each remained potentially subject to the imposition by the AWU of a fine, or to expulsion from the AWU;

(3)    they each remained the subject of charges of gross misbehaviour; and

(4)    Mr Davis would continue to investigate—and, ultimately, would determine—the charges brought against them.

8    Between 29 April and 2 September 2015, the Misconduct Charges remained in place, albeit undetermined. On 2 September 2015, they were withdrawn. By letters dated 18 October 2018 (after the commencement of this proceeding and the reaching by the parties of an agreement as to its proposed disposition), Mr Davis apologised to the Relevant Employees “…for contraventions of sections 340 and 346 of the Fair Work Act…” It is common ground that those apologies were issued in connection with the Misconduct Charges.

9    The applicant (hereafter, the “Ombudsman”) is a statutory office holder. By her amended originating application dated 11 October 2018, she alleges—and the AWU separately accepts—that the AWU contravened ss 340(1) and 346 of the FW Act by pursuing the Misconduct Charges in the way that Mr Davis pursued them. Her standing to prosecute this action is conceded (and, in any event, is not in doubt). For the reasons set out below, I accept that the contraventions in question occurred. At issue presently is what, if any, relief the court should award in consequence of them. The remainder of these reasons are directed to that inquiry.

Legislative scheme

10    Part 3-1 of the FW Act is entitled “general protections”. Amongst its objects is the protection of free association; and, specifically, the freedom of employees to participate, or not participate, in lawful industrial activities: FW Act, s 336(1)(b). It covers action that is taken by “organisations”. The AWU is and was one such organisation.

11    Section 340(1) of the FW Act relevantly provides as follows:

340 Protection

(1)    A person must not take adverse action against another person:

(a)    because the other person:

…

(ii)    has, or has not, exercised a workplace right…

12    “[A]dverse action” is defined by s 342(1) of the FW Act. Amongst other things, it includes action taken by an “industrial association” to impose upon one of its members a penalty, forfeiture or disability of any kind (other than in relation to money that is legally owed). It also includes the threatening of such action: FW Act, s 342(2). As an “organisation”, the AWU also qualifies as an “industrial association”: FW Act, s 12.

13    “[W]orkplace right” is defined by s 341(1) of the FW Act. A person possesses a workplace right if he or she (amongst other things) “is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument”: FW Act, s 341(1)(b). Protected industrial action (within the meaning attributed to that phrase by s 408 of the FW Act) qualifies as a “process or proceedings under a workplace law or workplace instrument”: FW Act, s 341(2)(c).

14    Section 346 of the FW Act relevantly provides as follows:

346 Protection

A person must not take adverse action against another person because the other person:

…

(b)    engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or

(c)    does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g)…

15    “[I]ndustrial activity” is defined by s 347 of the FW Act. That section relevantly provides as follows:

347 Meaning of engages in industrial activity

A person engages in industrial activity if the person:

…

(b)    does, or does not:

(iii)    encourage, or participate in, a lawful activity organised or promoted by an industrial association; or

(iv)    comply with a lawful request made by, or requirement of, an industrial association

…

(f)    takes part in industrial action…

16    Sections 340(1) and 346 are both “civil remedy provision[s]”: FW Act, s 539(1). By s 539(2) of the FW Act, the Ombudsman has standing to apply to this court for, amongst other remedies, the imposition against the AWU of pecuniary penalties of up to 300 penalty units in respect of each contravention of an individual “civil remedy provision”. The court has a power to grant relief of that kind if it is satisfied that such a contravention has occurred: FW Act, s 546(1). Immediately prior to 31 July 2015, a “penalty unit” was $170.00: Crimes Act 1914 (Cth), s 4AA. Immediately thereafter—and by virtue of Sch 1 of the Crimes Legislation Amendment (Penalty Unit) Act 2015 (Cth)—it increased to $180.00.

17    In addition to the imposition of pecuniary penalties, this court is empowered to make any other order that it considers appropriate in respect of a contravention of a civil remedy provision: FW Act, s 545(1).

18    Section 546(3) of the FW Act empowers the court to order that any pecuniary penalty that is imposed in consequence of its satisfaction that a civil remedy provision has been contravened should be paid to the Commonwealth or some other person.

19    Section 556 of the FW Act is headed “civil double jeopardy”. It provides as follows:

556 Civil double jeopardy

If a person is ordered to pay a pecuniary penalty under a civil remedy provision in relation to particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth in relation to that conduct.

Note:    A court may make other orders, such as an order for compensation, in relation to particular conduct even if the court has made a pecuniary penalty order in relation to that conduct (see subsection 546(5)).

20    Section 557 is headed “course of conduct”. It deems that multiple contraventions of particular civil remedy provisions that are committed by the same person and that arise from a single “course of conduct” are taken to constitute a single contravention. Neither of ss 340(1) and 346 are amongst the civil remedy provisions to which it refers. As will later be shown, that assumes some significance in the present case insofar as common law “course of conduct” or “one transaction” principles are invoked.

The agreed contraventions

21    As is outlined above, the parties are agreed that the AWU contravened ss 340(1) and 346 of the FW Act by pursuing the Misconduct Charges against the Relevant Employees. A statement of agreed facts (hereafter, the “SOAF”) was tendered in consequence of that agreement. It identifies with greater precision the conduct by which the AWU is said to have contravened those provisions and it is appropriate to set out that detail.

22    The parties’ SOAF bifurcates the AWU’s conduct into, first, the laying of the Misconduct Charges and, second, their “pursuit”. The former is said to have been constituted by Mr Davis’s 16 March 2015 letters. Employing the language of the AWU’s rules, the SOAF records (at [33]) the parties’ agreement that the charges to which those letters referred were laid “without a reasonable basis”.

23    The second aspect of the AWU’s conduct is, with respect, less precisely put. The SOAF records a series of events that occurred between 16 March 2015 (when the Misconduct Charges were first laid) and 2 September 2015 (when they were discontinued). The meeting of 29 April 2015 (above, [7]) is amongst them. Paragraph 45 of the SOAF then records the parties’ agreement that “[b]etween 16 March and 2 September 2015, the [AWU] subjected each of [the Relevant Employees] to unreasonable charges of misconduct under the [AWU’s r]ules”.

24    As sometimes is the case in matters like the present, the SOAF then descends beyond (indeed, further beyond) the realm of fact and into joint submission. Under the heading “agreed legal matters”, the parties record, in respect of each of the Relevant Employees, that:

(1)    “[b]y reason of the matters agreed at paragraph 33…the [AWU] limited, restricted or curtailed [the Relevant Employee’s] right and/or benefit to enjoy his membership of the [AWU] without being summonsed on a charge of misconduct under the [AWU’s r]ules without a reasonable basis”; and

(2)    “[b]y reason of the matters agreed at paragraph 45…the [AWU] limited, restricted or curtailed [the Relevant Employee’s] right and/or benefit to enjoy his membership of the [AWU] without being subjected to unreasonable charges of misconduct under the [AWU’s r]ules”.

25    Thus can be seen the bifurcation to which I earlier referred: the adverse action to which it is agreed that each of the Relevant Employees was subjected arose, first, from the laying of the Misconduct Charges on 16 March 2015 and, second, from the fact that the Relevant Employees remained subjected to those charges through until 2 September 2015 (that conduct is referred to, hereafter and collectively, as the “Contravening Conduct”).

26    Although plainly relevant in a contextual sense (and, thereby, to the question of what relief should be granted), the SOAF does not expressly constitute the events that transpired between 16 March and 2 September 2015—including the meeting of 29 April 2015 (above, [7])—as part of the conduct by which it is agreed that the Relevant Employees were subjected to adverse action in contravention of either of ss 340(1) or 346 of the FW Act. The second aspect of the Contravening Conduct appears to arise, instead, by omission; that is to say, because the AWU did not take steps to withdraw the Misconduct Charges until 2 September 2015.

27    The SOAF also addresses, as it should, the issue of why the AWU engaged in the Contravening Conduct. The parties agree that Mr Davis’s conduct in relation to the Misconduct Charges was conduct in which he engaged in his capacity as an officer or employee of the AWU’s. That being so (and insofar as concerns the matters alleged in this proceeding), Mr Davis’s conduct is properly to be attributed to the AWU, as is the state of mind that he had when he engaged in it: FW Act, ss 363 and 793. As to that state of mind, it is agreed that Mr Davis did what he did because each of the Relevant Employees had declined to participate in the AWU Industrial Action.

28    The parties agree—and I accept—that, by engaging in the Contravening Conduct, the AWU subjected each of the Relevant Employees to adverse action (within the meaning attributed to that phrase by s 342 of the FW Act). Each of the Relevant Employees was denied the full enjoyment of his AWU membership (and, thereby, subjected to a relevant disability) and each was threatened with fine or forfeiture. It is also plain—which is to say, again, that I accept—that the AWU’s conduct was materially (if not solely) animated by the Relevant Employees’ refusal to participate in the AWU Industrial Action. That refusal amounted, in each case, to the exercise of a workplace right and to engagement in industrial activity (within the meanings respectively attributed to those concepts by ss 341(1)(b) and 347(b) of the FW Act).

29    In light of the above, I accept that the AWU’s Contravening Conduct gave rise to four contraventions of civil remedy provisions under the FW Act: one of each of ss 340(1) and 346 in respect of each of the two Relevant Employees (those contraventions are referred to, hereafter and collectively, as the “Agreed Contraventions”).

Civil penalties

General principles

30    The parties each submit that the Agreed Contraventions should attract the imposition of pecuniary penalties, although there is significant divergence as to what those penalties should be.

31    In determining what penalties are appropriate in the present case, the court’s discretion is very broad: A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466, [6] (Gyles J). The task of assessing what amount to impose is one of “instinctive synthesis” that involves the selection of a figure that takes due account of all factors relevant to the particular case: Wong v The Queen (2001) 207 CLR 584, 611 [75] (Gaudron, Gummow and Hayne JJ); Markarian v The Queen (2005) 228 CLR 357, 373-375 [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) (2018) 260 FCR 68, 84 [55] (Allsop CJ, Davies and Wigney JJ); Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25, 36 [44] (Jagot, Yates and Bromwich JJ).

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

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

33    The principal (and probably sole) object to which the court must give effect in setting an appropriate penalty is to deter repetition of the conduct in respect of which it is to be imposed: Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482, 506 [55] (French CJ, Kiefel, Bell, Nettle and Gordon JJ). Deterrence is, in that sense, both specific and general—the court must strive to “…put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the FW Act”: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68, 88 [98] (Dowsett, Greenwood and Wigney JJ); Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076, 52,152 (French J). In Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155 (Allsop CJ, White and O’Callaghan JJ), the full court set the task in the following terms (at 167-168):

19    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 FW Act: French J in Trade Practices Commission v CSR Ltd [1990] FCA 762; [1991] ATPR 41-076 at 52,152, cited by the plurality in Commonwealth v Director of the Fair Work Building Industry Inspectorate (Civil Penalties Case) [2015] HCA 46; (2015) 258 CLR 482 at [55]. Retribution, denunciation and rehabilitation have no part to play.

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

21    The seriousness of the contravention and other features of the conduct which may be seen as relevant to it…find their place in understanding the degree of deterrence that is necessary to be reflected in the size of the penalty: Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; 260 FCR 68 at [71].

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

34    Inherent in realising the sole objective to which its imposition is directed is a recognition that a civil penalty “…must be fixed with a view to ensuring that the penalty is not such as to be regarded by [the] offender or others as an acceptable cost of doing business”: Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249, 265 [62]-[63] (Keane CJ, Finn and Gilmour JJ)); Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640, 659 [66] (French CJ, Crennan, Bell and Keane JJ); Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 249 FCR 458, 481 [101] (Dowsett and Rares JJ, North J dissenting).

35    In the present case, both sides accept—as do I—that the Agreed Contraventions warrant the imposition of pecuniary penalties. I proceed to consider the factors most relevant to what those penalties ought to be.

Nature of the contraventions

36    The nature of the contraventions is apparent from their description above. The AWU sought (or, to an extent, threatened) to penalise the Relevant Employees for their decision not to engage in the AWU Industrial Action.

37    By its written submissions, the AWU contended that (references omitted):

The conduct was not a deliberate contravention of the law or illustrative of a disregard for applicable laws. To the contrary, at all material times while engaging in the relevant conduct, Mr Davis held a genuine belief that the [AWU’s] Victorian Branch Committee of Management was able under Rule 19 of the [AWU’s r]ules to consider whether or not to take disciplinary action against [the Relevant Employees], and that he was following the process for dealing with charges of misconduct under the [AWU’s r]ules.

Further, the conduct was not systemic in nature. The conduct had not occurred prior to 2015. There is no suggestion by the FWO that it has been repeated since. It occurred as a result of a genuinely held but mistaken belief that the AWU was entitled to investigate the charges…

38    As to the existence of that belief, the AWU relied upon affidavit evidence of Mr Davis, who affirmed to that effect. That evidence was not challenged. It is, to say the least, surprising that an experienced union official occupying a position as senior as that which Mr Davis occupied might genuinely believe that punitive action could lawfully be taken against a person because he or she opted not to participate in union-sponsored industrial action. Amongst the leadership of large and powerful industrial associations, the objects of Pt 3-1 of the FW Act—and, in particular, its objective of protecting freedom of association and the rights of individuals to participate or not participate in lawful, union-led action—are surely notorious; and, if they are not, they plainly should be. But, given that he was not cross-examined on the point, I accept that Mr Davis did what he did because he thought that it was a lawful and legitimate course for him to follow. Obviously enough, conduct engaged in against that backdrop is objectively less serious (and deserving of a lesser penalty) than would be equivalent conduct that was engaged in with knowledge of its unlawfulness.

39    That, however, is not to say—and, to its credit, the AWU does not submit—that the Contravening Conduct was objectively not serious. It was. On any view, the AWU sought to make examples of the Relevant Employees; to punish them for their decision to dissociate themselves from the broader AWU collective and send a clear message to those who might be minded to exercise equivalent free will of their own in the future that doing so could cost them a price that they might prefer to avoid. Its conduct was plainly deliberate in that sense (even if engaged in on the mistaken belief that it was lawful). It is not to the point that no fine was ultimately imposed or that no formal consequence was ultimately visited (although, clearly, the conduct would be all the more serious were it otherwise). The process to which the Relevant Employees were subjected was a form of punishment in and of itself. It is important that the court should fashion penalties at a level that is sufficient to deter the AWU and other industrial associations from visiting equivalent processes in the future against those who exercise rights that Pt 3-1 of the FW Act is designed to protect.

Impact of the AWU’s conduct

40    By its written submissions, the AWU contended as follows:

It is a factor in mitigation that the relevant conduct did not cause any economic loss to [the Relevant Employees]. It is also a factor in mitigation that there is no evidence of any non-economic impact on [the Relevant Employees] that could properly be characterised as severe and enduring.

41    From the other perspective, each of the Relevant Employees affirmed affidavits, which were received without relevant objection and upon which the Ombudsman relies. Those affidavits make clear that the AWU’s Misconduct Charges were a source of genuine concern and anxiety for the Relevant Employees, as would hardly surprise. The Ombudsman submits that that, also, should inform the court’s discretion to fashion appropriate penalties.

42    The Contravening Conduct can properly be (and is) understood to have caused a not-insignificant degree of unease for the Relevant Employees. That consequence was, however, limited in scope and duration in light of the fact that the Misconduct Charges were ultimately withdrawn and neither of the Relevant Employees was subjected to any financial penalty. Further, I accept that neither of them was subjected to any consequence that might fairly be described as severe and ongoing.

43    The penalties that I will impose will reflect those realities.

Size and financial circumstances

44    The Ombudsman tendered unchallenged evidence about the AWU’s financial position. That evidence discloses that the AWU is possessed of significant financial resources.

45    That, alone, is not reason enough to impose penalties greater than those that might be imposed against an entity of less significant means. However, the AWU’s size and financial resources are factors that inform the point at which a penalty might achieve the deterrent effect to which its imposition is directed: Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (2015) 327 ALR 540, 560 [92] (Allsop CJ).

Increase in maximum penalty

46    As is outlined above, the value of a penalty unit increased with effect from 31 July 2015 from $170 to $180. Prior to that date, the maximum penalty that could be imposed for each contravention was $51,000.00; after it, it was $54,000.00. The Ombudsman contends that the court should impose penalties that take account of that larger maximum. The AWU submits that, as the bulk of the Contravening Conduct occurred prior to the increase, the penalties to be imposed should assume that the maximum is the smaller amount.

47    A similar situation confronted this court in Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557. There, Katzmann J, referring to an earlier increase in the value of a penalty unit (prior to the increase that confronts the court presently), noted as follows (at [394]-[401]):

The penalty increase only applies to offences committed after the amendment commenced: Crimes Act, s 4F(1). Contraventions of the civil remedy provisions of the FW Act, however, are not offences (FW Act, s 549) and s 7(2)(d) of the Acts Interpretation Act 1901 (Cth), which preserves existing penalties where Acts have been amended, only applies to penalties for offences. Does this mean that the amendment applies regardless of when the contraventions took place? I think not. Although the definition of “penalty unit” in the FW Act does not refer to s 4F of the Crimes Act, it is inconceivable that, in specifying that a penalty unit has the meaning given by s 4AA of that Act, Parliament did not intend that the section would apply according to its operation under that Act. In any case, the presumption against retrospectivity would apply such that, absent express words or necessary intendment, the new provision would not have retrospective effect.

…

[C]ontraventions occurring before the commencement of the amending Act must be determined by reference to the definition of “penalty unit” as it stood at the time of the contraventions.

Thus, in the present case, for those contraventions that occurred before 28 December 2012, a penalty unit is $110, and for those that occurred on and after that date it is $170. Some of the contraventions, however, occurred both before and after the increased penalty came into effect. The Ombudsman submitted that, where contraventions involve a course of conduct spanning the period both before and after the increase, the higher amount should apply or at least be taken into account. She relied on R v White (BC9101745, NSWCCA, 25 July 1991, unreported), a case in which the Court of Criminal Appeal was concerned to determine the maximum penalty for a conspiracy to defraud the Commonwealth of sales tax which had occurred over a period of time during which the maximum penalty had increased. In that case, Gleeson CJ, with whom Hunt J agreed, said (at 12):

The question whether the relevant maximum penalty in the present case was the penalty as amended or the penalty prior to amendment is one to be answered by reference to the intention of Parliament, which in turn is to be discerned by the application of the ordinary principles of statutory construction. I can see no reason to attribute to Parliament an intention that the amended maximum penalty should apply only in cases where the conspiracy in question was first entered into subsequent to the amendment, and should not apply to conspiracies that were on foot at the time of the amending legislation. In particular I can see no reason for concluding that Parliament intended that conspiracies pursued following the amendment would be punished more severely if they were entered into after the amendment, and less severely if they were entered into prior to the amendment.

Lee J, with whom Gleeson CJ and Hunt J agreed, observed that “it would not be inappropriate” for a sentencing judge to bear in mind an increase in penalty that has taken place during the currency of the conspiracy and take it into account in fixing sentence (at 11).

While the analogy is not a perfect one, I conclude that by parity of reasoning the same principle applies to contraventions of the FW Act involving a course of conduct which began before the amendment and continued after it came into effect.

It follows that, save for the contraventions of ss 535(2) and 536(1), the maximum penalties are these:

(1)    for each contravention that occurred entirely before 28 December 2012: $33,000 for GPS and $6,600 for Rosario;

(2)    for each contravention that occurred entirely on or after 28 December 2012: $51,000 for GPS and $10,200 for Enrico and Rosario; and

(3)    for each contravention that involved conduct that occurred both before and after 28 December 2012: $51,000 for GPS and $10,200 for Rosario.

For the contraventions of ss 535(2) and 536(1) they are either $16,500 or $25,500 for GPS and $3,300 or $5,100 for Rosario.

Nonetheless, in relation to the contraventions involving courses of conduct spanning the two periods, I will take into account in the determination of the penalty the fact that the lower amount applied for part of the period.

48    Her Honour’s reasoning has been applied since: Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop (No 3) [2019] FCA 848, [35]-[36] (Rares J); see also Registered Organisations Commissioner v Australian Nursing and Midwifery Federation (No 2) [2018] FCA 2004, [123]-[126] (Barker J). I am bound to apply—indeed, I gratefully adopt—her Honour’s analysis.

49    The Contravening Conduct occurred overwhelmingly prior to the point at which the value of a penalty unit was increased from $170 to $180. The AWU, pointing to that reality, submits that the penalties to be imposed against it should be imposed having regard to the smaller maximum penalty amount. Although I confess some sympathy for that submission, the competing view (for which the Ombudsman contended) is more in line with the weight of authority.

50    I proceed on the basis that the maximum penalty that the court may impose in respect of each of the four Agreed Contraventions is (in each case) $54,000.00. I am, however, conscious of (and, for the purposes of determining penalties, will take into account) the fact that the conduct by which each was constituted occurred primarily at a time when the maximum applicable penalty was $51,000.00.

Involvement of senior personnel

51    By its written submission, the AWU contended as follows:

The AWU accepts that the contravening conduct involved senior management. However, as submitted above, it is relevant to take into account that the conduct of senior management occurred [as] a result of a mistaken belief about the AWU being empowered by the [AWU’s r]ules to investigate the charges against [the Relevant Employees]. There is no basis to infer on the evidence before the [c]ourt that the conduct of senior management arose as a result of any lack of a culture of compliance at the AWU.

52    I accept that submission. The penalties that I will impose will reflect that acceptance.

Contrition

53    As the factual summary above recites, it is a matter of record that the AWU withdrew the Misconduct Charges laid against the Relevant Employees and has since apologised to them for their having been laid and pursued. That apology follows the reaching of an agreement between the parties in part-settlement of the proceeding (the particulars of which are, of course, not before the court).

54    There is no basis, suggested or otherwise, upon which to doubt that the apologies that the AWU extended to the Relevant Employees were genuine. They plainly bespeak an acceptance by the AWU that what was done to those employees was wrong and ought not to have occurred. That acceptance should (and will) sound to the AWU’s credit in the determination of the penalty to be imposed in respect of the Contravening Conduct, although it is not to be forgotten that it came about only after—indeed, quite some time after—the Ombudsman commenced this proceeding. Nonetheless, it reflects that the objective of specific deterrence looms less large than it might have otherwise.

55    There are other circumstances that conspire to the same effect. The AWU has agreed to undertake—and has undertaken—certain initiatives directed at ensuring that the Contravening Conduct is not repeated in the future. Specifically, it has commissioned training for its organisers and employees as to its obligations under Pt 3-1 of the FW Act and has published on its website a “fact sheet” that records the rights and obligations for which ss 340 and 346 of the FW Act provide. Again, its having done so reflects an appropriate acceptance on its part that the Contravening Conduct was wrong and should not have occurred, even if it were done in satisfaction of the bargain that the parties struck for the disposition of this proceeding. Again, that acceptance suggests that the objective of specific deterrence looms less large that it might have otherwise.

56    Further, the AWU’s engagement with the Ombudsman—and its agreement with her as to how this proceeding should be conducted—reflects an acknowledgment on its part of its own wrongdoing and a willingness to facilitate the course of justice. By having acted in that way, it has avoided the need for what would surely have been a difficult and expensive trial.

57    The Ombudsman accepts that the AWU is entitled to a reduction to the penalty that, absent the measures outlined above, might otherwise be appropriate. She contends that a discount of 10% is appropriate. In her written submissions, she noted that:

(1)    the AWU “…failed to withdraw the Charges against [the Relevant Employees] until around 7 weeks after being informed that the FWO had commenced an investigation into the matter, and even then, did not inform the members themselves”;

(2)    the apologies that were issued to the Relevant Employees were issued “…just prior to the [Ombudsman’s] filing [her] evidence on penalty…”;

(3)    there is “…no evidence of any other steps taken to improve a culture [within the AWU] of compliance with the objects of the FW Act”; and

(4)    the SOAF was executed “…more than two years after the proceedings commenced.”

58    Respectfully, I do not consider that the measures taken by the AWU lend themselves to precise quantification. I should prefer to take account of them more holistically: as circumstances that inform where it is on the spectrum of available penalties that the court should land in order to best achieve the deterrent effect for which the relief that is to be granted should strive.

Double jeopardy

59    The parties each accept that s 556 of the FW Act has the effect of prohibiting the imposition of anything more than a single penalty in respect of each of the Relevant Employees (that is to say, two penalties in total). That is so because the conduct that, in respect of each employee, constitutes the contravention of s 340(1) is the same conduct that constitutes the contravention of s 346 (namely, the laying of the Misconduct Charges on 16 March 2015 and the failure to withdraw them prior to 2 September 2015—in each case because the Relevant Employee opted not to participate in the AWU Industrial Action). Section 556 of the FW Act is enlivened in those circumstances: Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2019] FCAFC 201, [18]-[26] (Bromberg, Wheelahan and Snaden JJ).

60    The penalties that I will impose will be fashioned on that basis.

Course of conduct and totality

61    Although neither of ss 340(1) or 346 is covered by s 557 of the FW Act, it is common ground between the parties that the court may group the Agreed Contraventions by application of the common law “course of conduct” or “one transaction” principles. In Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654 (“Pattinson”), I made (at [104]-[108]) the following observations about those principles and the related “totality” principle:

    As the circumstances here involve multiple statutory contraventions, it is necessary that the court should consider how the penalties to be imposed should be informed by application of the common law “course of conduct” (or “one transaction”) principle. Given how closely related it is to that principle, it is convenient to deal in this section also with the application of the so-called “totality” principle.

    In Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243 (“Yazaki”, Allsop CJ, Middleton and Robertson JJ), the court observed (at 294 [226]) that the two principles (“course of conduct” and “totality”) are “…not rules, but principles or tools to assist the Court in arriving at an appropriate penalty.” It is “…not appropriate or permissible to treat multiple contraventions as just one contravention for the purposes of determining the maximum limit dictated by the relevant legislation”: Yazaki, 294-295 [227] (Allsop CJ, Middleton and Robertson JJ). An application for special leave to appeal that judgment to the High Court was refused with costs: Yazaki Corporation & Anor v Australian Competition and Consumer Commission [2018] HCATrans 215 (Gageler, Gordon and Edelman JJ).

    The “course of conduct” principle:

…recognises that, where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality. The interrelationship may be legal, in the sense that it arises from the elements of the crimes. It may also be factual, because of a temporal or geographical link or the presence of other circumstances compelling the conclusion that the crimes arise out of substantially the same act, omission or occurrences.

See: Royer v Western Australia (2009) 197 A Crim R 319, 328 [22] (Owen JA, with whom Miller JA agreed in the result, Buss JA dissenting).

    In Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal) [2019] FCAFC 69, Rangiah J (with whom Ross J agreed in the result, Flick J dissenting) made the following observations about the “course of conduct” principle (at [181]):

The principle recognises that where there are multiple contraventions arising out of a single course of conduct, there is a danger of a contravener being punished more than once for essentially the same offending conduct. However, the principle does not involve a simplistic transposition of multiple contraventions into one contravention, or, necessarily, the imposition of only one penalty. The court’s task is to evaluate the conduct and its course and assess what penalty is, or penalties are, appropriate for the contraventions: see Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 59 at [10] – [12], [123] – [124] and [132]; Transport Workers’ Union Australia v Registered Organisations Commissioner [No 2] [2018] FCAFC 203 at [84] and [92]; and the authorities referred to therein. That may, but will not necessarily, result in a single penalty being imposed for multiple contraventions arising out of a course of conduct.

    The “course of conduct” principle does not operate as a de facto limit on the penalties that the court may impose in respect of multiple, related contraventions and the court is not obliged to apply it if doing so would fail to reflect the seriousness of the contraventions: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) (2019) 286 IR 336 (hereafter, “The Nine Brisbane Sites Appeal”), 342-343 [12] (Allsop CJ), 363-364 [124] (Rangiah J, with whom Griffiths J agreed); Yazaki, 106 [235] (Allsop CJ, Middleton and Robertson JJ). Nonetheless, in applying the principle, the task is “…to evaluate the considerations informing the contraventions (factual and legal) in order to impose appropriate penal relief that does not punish twice for the same conduct”: Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) (2018) 363 ALR 464, 481 [91] (Allsop CJ, Collier and Rangiah JJ).

62    The AWU contends that the four Agreed Contraventions should, in effect, be grouped such that only a single penalty is imposed in respect of them. Grouping the contraventions in that way, the submission continues, would appropriately reflect what is described as the single course of conduct by which the AWU laid and prosecuted (or failed to withdraw) the Misconduct Charges. To that end, the AWU emphasises that the 16 March letters were sent at the same time, and that the steps that the AWU subsequently took were not specific to only one or other of the Relevant Employees. On the contrary, the Misconduct Charges proceeded as against them collectively, rather than individually.

63    The Ombudsman, on the other hand, contends that the two Relevant Employees were separately entitled to the benefit of their AWU membership, that the letters that they received on 16 March 2015 were addressed to them personally and that, in that sense, “...the ‘particular conduct’ is conduct particular to each of [them]”.

64    I accept the submission advanced by the AWU. The AWU embarked upon the course that it did because the Relevant Employees opted not to participate in the AWU Industrial Action. Its decision to subject them to disciplinary action under its rules was common as between the two of them. Their individual characteristics were irrelevant. They were treated as a collective; as a cohort of AWU members that had defied the wider collective decision to pursue the AWU’s bargaining agenda by engaging in the AWU Industrial Action. There was not obviously anything about the manner in which they were treated that was otherwise peculiar to them as individual AWU members. Of course, the conduct to which they were subjected comprised of discrete acts, some of which (the individual 16 March 2015 letters being the obvious example) were directed peculiarly at one or other of them. But those discrete instances of conduct were engaged in contemporaneously and in aid of a common purpose; and, in that sense, should properly be understood as comprising a single transaction.

65    Those realities acknowledged, I will proceed on the basis that the Agreed Contraventions should be grouped as though they all arose from a single course of conduct. It does not follow that I should approach the question of penalty as though the maximum penalty available is the maximum that would be available in respect of a single contravention; but I will, nonetheless, strive to avoid penalising the AWU more than once for what I consider is the single course out of which all four Agreed Contraventions arose.

Application

66    The Ombudsman contends that the court should impose penalties totalling between $77,760 and $87,480. Those figures represent (respectively) 80% and 90% of the maximum available for two contraventions ($108,000.00), less a 10% discount in light of the AWU’s contrition and cooperation. The AWU, by contrast, submits that aggregate penalties totalling between $10,000.00 and $15,000.00 (against a notional maximum of $51,000.00) are appropriate.

67    The figures that the Ombudsman advances are well above what is appropriate in the present circumstances. I would not contemplate a penalty anywhere close to 80% or 90% of the maximum for a contrite and cooperative first-time offender whose conduct, although serious and wrong, was withdrawn and made the subject of apology, and appears not to have visited any serious, long-term effects upon its victims (an observation I make without wishing to downplay its effects in any way). In the present circumstances, the penalties for which the Ombudsman contends are extreme.

68    In light of the observations made herein, I am minded to impose two penalties upon the AWU, each set at 25% of the maximum available: that is, two penalties of $13,500 each. In the absence of submission on the point, I will impose penalties in respect of the AWU’s contraventions of s 346 of the FW Act (rather than s 340(1)). I do so only because s 556 of the FW Act effectively requires that I choose one over the other. Both provisions are appropriately suited to the Contravening Conduct but I take the view that the Relevant Employees’ decision to not participate in the AWU Industrial Action identifies slightly more readily as engagement in industrial activity than as the exercise of a workplace right (within the meanings respectively attributed to those phrases by ss 347(b) and 341(1)(b) of the FW Act). Nothing of any substance turns upon that choice.

69    In light of the comments that I have made above about the “course of conduct” principle, I consider that it is appropriate to reduce those penalties to a total of $18,000.00. There is some tension in the authorities as to whether I should (or could) impose a single penalty referrable to the two s 346 contraventions (as opposed to individual penalties for each): Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68, 99-100 [148]-[149] (Dowsett, Greenwood and Wigney JJ); Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) (2018) 363 ALR 464, 481 [90] (Allsop CJ, Collier and Rangiah JJ). Given that I am here contemplating (in a penalty sense) only two contraventions of s 346 of the FW Act, I am content to impose separate penalties in respect of each. Given that each contravention is, by nature and circumstance, equal to the other, each will attract for the AWU a penalty in the same amount, namely $9,000.00.

70    Having considered them in their totality, I am satisfied that penalties totalling $18,000.00 are a proportionate response to the AWU’s wrongdoing and represent an appropriate sanction tailored to the deterrence of its repetition.

Declaratory relief

71    In addition to the imposition of penalties, the Ombudsman seeks declaratory relief to record each of the Agreed Contraventions. The AWU does not oppose the grant of such relief. The parties jointly propose declaratory relief in the following terms:

1.     In contravention of s 340 of the Fair Work Act 2009 (FW Act), the Australian Workers’ Union (AWU) took adverse action against its member, [one of the Relevant Employees], because he had exercised a workplace right not to take protected industrial action on 3 March 2015. The adverse action was constituted by issuing a letter dated 16 March 2015 summonsing [that Relevant Employee] on a charge of misconduct under the Rules of the AWU (Rules) without a reasonable basis and subjecting [that Relevant Employee] to an unreasonable charge of misconduct under the Rules between 16 March and 2 September 2015.

2.     In contravention of s 340 of the FW Act, the AWU took adverse action against its member, [the other of the Relevant Employees], because he had exercised a workplace right not to take protected industrial action on 3 March 2015. The adverse action was constituted by issuing a letter dated 16 March 2015 summonsing [that Relevant Employee] on a charge of misconduct under the Rules without a reasonable basis and subjecting [that Relevant Employee] to an unreasonable charge of misconduct under the Rules between 16 March and 2 September 2015.

3.     In contravention of s 346 of the FW Act, the AWU took adverse action against its member, [one of the Relevant Employees], because he did not engage in industrial activity within the meaning of ss 347(b) and 347(f) of the FW Act, namely protected industrial action on 3 March 2015. The adverse action was constituted by issuing a letter dated 16 March 2015 summonsing [that Relevant Employee] on a charge of misconduct under the Rules without a reasonable basis and subjecting [that Relevant Employee] to an unreasonable charge of misconduct under the Rules between 16 March and 2 September 2015.

4.     In contravention of s 346 of the FW Act, the AWU took adverse action against its member, [the other of the Relevant Employees], because he did not engage in industrial activity within the meaning of ss 347(b) and 347(f) of the FW Act, namely taking protected industrial action on 3 March 2015. The adverse action was constituted by issuing a letter dated 16 March 2015 summonsing [that Relevant Employee] on a charge of misconduct under the Rules without a reasonable basis and subjecting [that Relevant Employee] to an unreasonable charge of misconduct under the Rules between 16 March and 2 September 2015.

72    I recently had occasion to consider the court’s power to grant declaratory relief that does nothing more than record that a respondent’s conduct was engaged in in contravention of a statute: Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070, [73]-[98] (Snaden J). After referring to authority, I observed (at [85]):

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

73    I then explored the matters that might inform the court’s discretion to exercise the power that I accepted that it had; and, in particular, the circumstances in which it might be thought that there was utility in doing so. I do not restate the matters of principle to which I referred, save for my conclusion (at [98]):

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

74    In the present case, the relief that the parties agree is appropriate does little more than record what the parties themselves have agreed and what I, by the conclusions contained in these reasons (above, [29]), have accepted. That is not an appropriate deployment of the remedy: Warramunda Village v Pryde (2001) 105 FCR 437, 440 [8] (Gray, Branson and North JJ); Australian Competition and Consumer Commission v MSY Technology Pty Ltd & Ors (2012) 201 FCR 378, 388 [35] (Greenwood, Logan and Yates JJ).

75    Further, I do not accept that declaratory relief in this case might serve as a record of my decision any more formally than do these reasons. In Pattinson (at [122]-[123]), I made the following observations on that score:

The orders that the court will pronounce are not to be read in a vacuum. In Athens v Randwick City Council (2005) 64 NSWLR 58, Santow JA (with whom Hodgson JA and Tobias JJA agreed) observed (at 78):

The purpose of a court order is, ordinarily, to give effect to a judgment. The judgment is not some kind of penumbral context surrounding the order. Rather the judgment is the source of the order. A court order derives from its originating judgment, as a transfer of land derives from the underlying contract.

This court found to similar effect in Yates Property Corporation Pty Ltd v Boland (1998) 89 FCR 78 (Drummond, Sundberg and Finkelstein JJ). There, Drummond J (with whom Sundberg and Finkelstein JJ agreed), said (at 78-79):

It is impermissible, in my view, as well as being quite unrealistic, to attempt to read, that is, to understand an order in isolation from the context of the reasons for it being made. The Full Court of the Supreme Court of Queensland, in Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230 held that, in interpreting an order framed in unambiguous language, regard should still be had to the reasons given by the Court for making the order because they form part of a context in which the order was made.

Other judges of this court have expressed similar views: Hamersley Iron Pty Ltd v National Competition Council (2008) 247 ALR 385, 399 (Weinberg J); Smith v Comcare (2014) 64 AAR 205, 218 (Robertson J); Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd [2016] FCA 1129, [13] (Moshinsky J); Australian Competition and Consumer Commission v ACN 117 372 915 Pty Limited (in liq) (formerly Advanced Medical Institute Pty Limited) [2015] FCA 1441, [53] (Moshinsky J).

76    There is nothing peculiar about the Agreed Contraventions that warrants their expression by means of declaratory relief. The form of the relief that is sought does not obviously convey any sense of disapproval by the court of the AWU’s Contravening Conduct; and certainly not anything beyond that which is conveyed by these reasons. There is, perhaps, a measure of convenience that a short-hand, declaratory expression of the Agreed Contraventions might realise, particularly given that the pecuniary penalties that will be imposed will be referrable only to two of them: see, in that vein, Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining, and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555, [78] (Wheelahan J). However, declaratory relief that does nothing more than record that historical conduct was embarked upon in breach of a statutory injunction should not, in my view, be granted merely because it is convenient (or not inconvenient) to grant it, at least not in a relatively straightforward case such as this one, in which the relevant contraventions are agreed, the reasons for judgment are not especially lengthy, and the conclusions to which those reasons give voice are reasonably accessible. In order that declaratory relief might be appropriate, there should be some utility to what is sought that is founded in any one or more of the ways that the authorities have historically recognised (as to which, see above, [73]). In the absence of there being some utility in doing so, it is not appropriate to grant declaratory relief: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ); Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591, 613 [52] (Gaudron J); Lifeplan Australia Friendly Society Ltd v Ancient Order of Foresters in Victoria Friendly Society Limited (No 2) [2017] FCAFC 99, [3] (Allsop CJ, Middleton and Davies JJ); Australian Competition and Consumer Commission v MSY Technology Pty Ltd & Ors (2012) 201 FCR 378, 388 [35] (Greenwood, Logan and Yates JJ); Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406, 414 (Lockhart J, with whom Spender and Cooper JJ agreed).

77    I am not persuaded that that utility here exists. It is not apparent how declaratory relief in the form sought might realise any educative or deterrent effect additional to that which flows from these reasons and/or the orders that I will make. Likewise, I do not accept that the Ombudsman’s efforts in prosecuting this action will be vindicated any more than they will be by these reasons and/or the penalty orders that I will make.

78    It is simply not necessary or useful to record in declaratory form that the four Agreed Contraventions occurred (as I have accepted).

79    Finally, the terms of the declaratory relief that the parties have proposed (above, [71]) are problematic in at least two senses. First, all four of the proposed declarations refer to the Misconduct Charges having been “unreasonable” or laid “without a reasonable basis”. That language is conclusory: there is no recitation or analysis of the facts or circumstances by reason of which those descriptions might fairly apply (assuming that they need to, which is an assumption that isn’t obviously well-grounded). Second, each of the proposed declarations refers to the AWU “subjecting” each of the Relevant Employees to the Misconduct Charges. Again, that language is conclusory: it does not describe the conduct (namely the omission described at [26] above) by which that subjection was constituted. At least for those reasons, the declaratory relief that the parties jointly propose amounts to a “bad precedent” of the kind against which the High Court has counselled: Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53, 91 [90] (Gummow, Hayne and Heydon JJ).

80    It follows that no declaratory relief will be granted.

Conclusion

81    Pursuant to s 546(1) of the FW Act, the court will order that the AWU pay pecuniary penalties totalling $18,000.00, comprising of two penalties of $9,000.00 (one for each of the Agreed Contraventions that are constituted by its breaches of s 346 of the FW Act).

82    Those penalties will be made payable to the Commonwealth within 28 days. Presumably conscious of the effect of s 570(1) of the FW Act, the Ombudsman does not seek an order for costs and none will be made.

Associate:

Dated:    7 February 2020