FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Castlemaine Police Station Case No 2) [2020] FCA 202

ORDERS

1.    In respect of the contravention of section 500 of the Fair Work Act 2009 (Cth) (the Act) by the second respondent declared by the Full Court on 12 February 2018, the first respondent:

(a)    engaged in the second respondent’s conduct by operation of section 793(1) of the Act and thereby participated in that contravention;

(b)    is taken by operation of section 793(2) of the Act, to have known of all of the essential facts constituting that contravention;

(c)    was accordingly knowingly concerned in that contravention within the meaning of section 550 of the Act; and

(d)    thereby itself contravened section 500 of the Act in respect of that contravention.

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended from the “Construction, Forestry, Mining and Energy Union” to the “Construction, Forestry, Maritime, Mining and Energy Union”.

2.    The second respondent pay a penalty of $8,500 in respect of his contravention of section 500 of the Act as declared by the Full Court on 12 February 2018.

3.    The first respondent pay a penalty of $51,000 in respect of its contravention of section 500 of the Act as declared by declaration 1 above.

4.    The pecuniary penalties referred to in paragraph 2 be paid to the Commonwealth of Australia within 28 Days of these orders being made by the Court.

5.    The pecuniary penalties referred to in paragraph 3 be paid to the Commonwealth of Australia within 28 Days of these orders being made by the Court.

6.    There be no order as to costs.

7.    The proceeding is otherwise dismissed.

THE COURT DIRECTS THAT:

8.     The applicant serve these orders on:

(a)    the first respondent in accordance with rule 10.04 of the Federal Court Rules 2011; and

(b)    the second respondent in accordance with rule 10.31 of the Rules.

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

REASONS FOR JUDGMENT

ANASTASSIOU J:

Background

1    The applicant (the Commission) seeks declarations and civil penalties in relation to contraventions of the Fair Work Act 2009 (Cth) (FW Act) by the first respondent (hereafter the Union) and the second respondent (Mr Tadic). The Union was previously known as the Construction, Forestry, Mining and Energy Union but has since merged with the Maritime Union of Australia and the Textile, Clothing and Footwear Union of Australia to become the Construction, Forestry, Maritime, Mining and Energy Union, commonly referred to as the CFMMEU.

2    The application before the Court concerns the penalty to be imposed on the Union and Mr Tadic for contraventions of s 500 of the FW Act. Section 500 of the FW Act provides:

500 Permit holder must not hinder or obstruct

A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

3    On 12 February 2018 the Full Court in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Castlemaine Police Station Case) [2018] FCAFC 15; 258 FCR 158 allowed an appeal by the Commission against the determination of the primary judge dismissing the application of declarations for contraventions of s 500 of the FW Act. The Full Court remitted the determination of an appropriate penalty and whether the Union is liable for Mr Tadic’s conduct to a differently constituted Court. The Union conceded that by operation of sections 550 and 793 of the FW Act, it is liable for Tadic’s contravention of s 500. Accordingly, the matters before the Court are the determination of an appropriate penalty to be imposed on each of the Union and Mr Tadic and the making of declarations concerning their contraventions of s 500 of the FW Act.

4    There is also an ancillary question as to whether an order should be made requiring that the penalty imposed on Mr Tadic should be paid by him personally, that is without any reimbursement by the Union.

5    The Full Court set out (at [6] to [10]) Mr Tadic’s contravening conduct:

6    In 2014 work was proceeding on the construction of a police station at Castlemaine in Victoria. The head contractor for the project was Behmer and Wright Pty Ltd (“Behmer”). On 13 June 2014 Mr Tadic and another official of the Construction, Forestry, Mining and Energy Union [as above, now the CFMMEU], Mr Nigel Davies, entered the site. They were both holders of entry permits, issued under the [FW] Act. They spoke to the acting site supervisor and advised him that they considered, for various reasons, that the site was unsafe.

7    Shortly after he had entered the site Mr Tadic made telephone contact with WorkSafe Victoria (“WorkSafe”) and requested that an inspector attend at the site. In response to this request Mr Jason Sharples, who was an inspector appointed under the Occupational Health and Safety Act 2004 (Vic) (“the OHS Act”), came to the site. Not long afterwards Mr Bradley Regan, the site manager, also arrived.

8    Mr Sharples proposed to conduct a safety inspection of the site. Before he did so he told Mr Tadic that Mr Tadic should limit any questions and comments he may wish to make about site safety until the end of the inspection. This request was later to be repeated during the conduct of the inspection.

9    Mr Sharples embarked on the inspection. He was accompanied by Mr Tadic, Mr Davies and Mr Regan. The site was large and the inspection eventually took about an hour and a half to two hours to complete [referred to as the ‘safety walk’ below].

10    At various points during the inspection Mr Tadic made complaints about what he perceived to be safety concerns. There was conflicting evidence about the manner in with which Mr Tadic had made his complaints but the trial judge accepted that Mr Tadic had been forceful in the way he had spoken on various occasions. Mr Regan accepted some of Mr Tadic’s complaints and directed that immediate remedial action, such as cordoning off some areas, should be taken.

6    The Full Court made the following declarations which relevantly capture the offending conduct of Mr Tadic:

3.    In lieu [of the declarations of the Justice North]:

It be declared that, on 13 June 2014 at the building site of the Castlemaine Police Station (“the Site”), the second respondent acted in an “improper manner” within the meaning of s 500 of the Fair Work Act 2009 (Cth) (“the Act”) by engaging in the conduct and in the circumstances identified by the trial judge, namely:

(i)    Before and during his inspection of the Site, the WorkSafe Victoria inspector, Jason Sharples, twice told Alex Tadic that he should limit his questions and comments until the end of Mr Sharples’ visit.

(ii)    Despite the request referred to in (i) being made by Mr Sharples, Mr Tadic did not comply with these requests.

(iii)    Mr Tadic “expressed his dissatisfaction [with Mr Sharples] directly and forcefully to Mr Sharples. In doing so he used swear words liberally. This speech was louder than normal conversation but was not yelling and not screaming. Mr Tadic generally directed these comments to the state of the premises rather than to [Mr Sharples] personally. The swearing was by way of ‘sentence enhancer’. It was not generally used in an aggressive way, but rather to add emphasis to the point he was seeking to make” (emphasis added).

(iv)    The conduct of Mr Tadic referred to in (iii) caused Mr Sharples to be “distracted” from his task but not to an appreciable degree.

(v)    During the inspection, Mr Tadic called Mr Sharples the worst inspector he had ever seen, causing Mr Sharples to be disconcerted and concerned about his reputation.

(vi)    The CFMEU organiser, Nigel Davies, considered that, when Mr Tadic made his statement, his voice was louder than in general conversation.

(vii)    During the course of Mr Sharples’ inspection of the Site, Mr Tadic told Mr Sharples in a raised voice that he was “pathetic”.

(viii)    During the course of Mr Sharples’ inspection of the Site, Mr Tadic said to Mr Sharples: “Are you applying for a job with the builder?”.

(ix)    During the inspection, the CFMEU organiser, Mr Davies, considered that Mr Tadic’s “tone [towards Sharples] was probably sarcastic”.

(x)    As Mr Tadic left the Site, in the presence of workers at the Site, Mr Tadic said to Mr Sharples: “This is not over”.

(emphasis in original)

Applicable Principles

7    The principles generally applicable to the imposition of penalties under the FW Act were helpfully surveyed recently by Bromberg J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Cardigan Street Case) [2018] FCA 957 at [48] to [54]. For convenience, I set out below that summary:

Section 546(1) of the FW Act provides no express guidance in relation to the determination of an appropriate pecuniary penalty in respect of the contravention of a civil remedy provision under the FW Act. The section simply says that the Court may make an order imposing a pecuniary penalty the Court considers is appropriate.

However, the authorities provide substantial guidance. The purpose of a civil penalty is primarily, if not wholly, protective to promote the public interest in compliance: Commonwealth of Australia v Director of the Fair Work Building Industry Inspectorate (2015) 258 CLR 482 (the “Agreed Penalties Case”) at [54]-[55] (French CJ, Kiefel, Bell, Nettle and Gordon JJ). This objective is achieved by putting a price on contraventions that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene. Both specific and general deterrence are important considerations: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113 (the “QLD Infrastructure Case”) at [98] (Dowsett, Greenwood and Wigney JJ).

In relation to specific deterrence, it has been frequently observed that a pecuniary penalty for a contravention of the law must be fixed with a view to ensuring that the penalty is not to be regarded by the offender or others as an “acceptable cost of doing business”: Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at [66] (French CJ, Crennan, Bell and Keane JJ); Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20 at [62]-[63] (Keane CJ, Finn and Gilmour JJ). On the other hand, general deterrence is directed at sending a message to a broader audience that contraventions of the kind under consideration are serious and not acceptable: Australian Securities and Investments Commission v Southcorp Ltd (No 2) (2003) 130 FCR 406 at [32] (Lindgren J).

The fixing of a pecuniary penalty involves the identification and balancing of all the considerations relevant to the contravention and the circumstances of the respondent, and making a value judgment as to what is the appropriate penalty in light of the protective and deterrent purposes of a pecuniary penalty. This process has been described as an “instinctive synthesis” akin to that undertaken in criminal sentencing: Markarian v The Queen (2005) 228 CLR 357 at [51] (McHugh J); QLD Infrastructure Case at [100].

A non-exhaustive list of the considerations that may be relevant when fixing a pecuniary penalty is conveniently set out in the QLD Infrastructure Case, where the Full Court identified those considerations that relate to the objective nature and seriousness of the offending conduct, and those that concern the particular circumstances of the respondent in question in the following terms:

[103] The factors relating to the objective seriousness of the contravention include: the extent to which the contravention was the result of deliberate, covert or reckless conduct, as opposed to negligence or carelessness; whether the contravention comprised isolated conduct, or was systematic or occurred over a period of time; if the defendant is a corporation, the seniority of the officers responsible for the contravention; the existence, within the corporation, of compliance systems and whether there was a culture of compliance at the corporation; the impact or consequences of the contravention on the market or innocent third parties; and the extent of any profit or benefit derived as a result of the contravention.

[104] The factors that concern the particular circumstances of the defendant, particularly where the defendant is a corporation, generally include: the size and financial position of the contravening company; whether the company has been found to have engaged in similar conduct in the past; whether the company has improved or modified its compliance systems since the contravention; whether the company (through its senior officers) has demonstrated contrition and remorse; whether the company had disgorged any profit or benefit received as a result of the contravention, or made reparation; whether the company has cooperated with and assisted the relevant regulatory authority in the investigation and prosecution of the contravention; and whether the company has suffered any extra-curial punishment or detriment arising from the finding that it had contravened the law.

In determining the appropriate penalty, the Court must also give consideration to the maximum penalty for the contravention. As the Full Court observed in the QLD Infrastructure Case at [106], there are at least three reasons for this: first, that the legislature has legislated for the maximum penalty as an expression of the legislature’s policy concerning the seriousness of the prescribed conduct; second, that it permits comparison between the case under consideration and the worst possible case (where the maximum penalty can be treated as the penalty appropriate for the worst possible case); and third, that the maximum penalty provides a “yardstick” which should be taken and balanced with all the other relevant factors.

While giving appropriate significance to the principle of deterrence, the amount of the penalty should also be proportionate to the contravention and should not be so high as to be oppressive: Trade Practices Commission v Stihl Chainsaws (Aust) Pty Ltd (1978) ATPR 40‑091 (Smithers J) at 17,896; NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 293 (Burchett and Kiefel JJ); QLD Infrastructure Case at [107].

Significance of the Union’s History of Contravention

8    The Union’s extensive record of contraventions of the FW Act necessarily raises the question of the significance of that history to the determination of an appropriate penalty for the instant contravention with which a court is concerned. This question has been considered in several recent Full Court and single judge judgments of this Court. Snaden J in Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654 (at [33] to [63]) considered these decisions. More recently they were considered by Bromberg J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bay Street Case) (No 2) [2019] FCA 1859 (at [16] – [20]). In light of those recent surveys it is unnecessary for me to again narrate the progression of the authorities aptly summarised by Snaden J and Bromberg J.

9    I shall focus upon the question of what those authorities require in relation to the significance to be given to past contraventions of the Act when determining an appropriate penalty in an instant case. There is a difference of view between Snaden J (at [63]) in Pattinson and Bromberg J (at [20]) in The Bay Street Case concerning that question. It is not necessary at this point to discuss the respective analyses by Snaden J and Bromberg J which led them to different conclusions concerning the present state of authority.

10    The weight to be given to anterior offences when considering an appropriate penalty in an instant case involving a recidivist offender is ultimately governed and constrained by the principle of proportionality. That is to say, it is not permissible to give such weight to an offender’s history of offending as would lead to the imposition of a penalty which is disproportionate to the gravity of the instant contravention: Veen v The Queen (No 2) (1988) 164 CLR 465 at [104]. That principle which was developed in the context of sanctions to be imposed for criminal offences has been applied in civil penalty cases for contraventions of the FW Act. Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126; 265 FCR 208 (at [93]) per Bromwich J; Parker v Australian Building and Construction Commissioner [2019] FCAFC 56; 365 ALR 402; Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97; 264 FCR 155; Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; 363 ALR 246 and other authorities referred to in The Bay Street Case at [18].

11    In The Broadway on Ann Case, Bromwich J articulated (at [93]) the proportionality principle, among other considerations, relevant to the determination of an appropriate penalty for contravention of the Act as follows:

(1)    While any prior contravention is a factor which may be taken into account in determining quantum, it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant contravention.

(2)    The maximum penalty available under statute must be reserved for the worst category of cases. However, this does not mean that a lesser penalty must be imposed because it is possible to envisage a worse case.

(3)    The Federal Circuit Court and this Court should not, without giving the parties proper notice and an opportunity to be heard, disregard the submissions of the regulator and impose a penalty in excess of what the regulator seeks.

(4)    While the formulation of the quantum of an appropriate penalty usually involves, in the final analysis, an “instinctive” synthesis of competing factors, the process leading to that synthesis is not instinctive.

(5)    The outcomes arrived at by courts in prior cases can be used to help ensure reasonable consistency in the application of principle and as a yardstick for the determination of appropriate penalties.

12    In my view, (2) above is a conclusion which may be expected to follow from (1) in the majority of cases when the instant contravention is considered independently of the offender’s history of offending conduct. However, (2) remains but an example of the proper application of (1) in most cases. The question of whether the instant infringement falls within the “worst category of cases” can only be determined by an assessment of the instant case and other examples of relevant contraventions, possibly by the same, but also including other, offenders.

13    The proportionality principle requires simply that such weight should not be given to prior offences as would lead to the imposition of a disproportionate penalty. There is nothing inherent in the principle of proportionality that prohibits the instant contravention from being considered in the context of a pattern of behaviour or course of conduct on the part of a particular offender, whether that course of conduct is the subject of the instant contravention or may be inferred from a history of earlier contraventions.

14    I agree with the analysis by Wheelahan J on this point in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining, and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555 at [96]:

On the issue of the relevance of past contraventions by the CFMEU respondents and proportionality, I shall apply the principles and guidance identified in The Non-Indemnification Personal Payment Case, the Broadway on Ann case, and in Parker in the passages to which I have referred above. I accept the submission made on behalf of the CFMEU respondents that the prior record of a contravener does not permit the imposition of a penalty that is disproportionate to the offending conduct for which the penalty is to be imposed. But Veen v The Queen (No 2), the reasons of Tracey J and Logan J in the Broadway on Ann case, and the reasons of the members of the Court in Parker support the idea that past contraventions may be relevant in assessing the seriousness of the instant contraventions. A history of contraventions may affect a number of features of the instant contraventions, including whether the instant contraventions are a manifestation of a continuing attitude of disobedience to the law. For this reason, and when all the background circumstances and other features of a contravention are considered, what might in isolation and superficially be a minor contravention may take on the complexion of a much more serious contravention. And consistently with deterrence being the principal object of the imposition of civil penalties under the Fair Work Act, a history of contravention may point to a need for a more severe penalty than would otherwise be the case if there was no history of contravention. The significance of a history of contraventions may be compounded by the absence of contrition, and the absence of evidence addressing steps taken to ensure future compliance with the law. For these reasons, a severe penalty may be proportionate to what might in other circumstances be a minor contravention. Overriding these considerations is the care that should be exercised to ensure that any penalties imposed for the instant contraventions do not amount to double punishment for prior contraventions. Care in avoiding double punishment also informs other aspects of the process of fixing penalties, including whether the contraventions are part of a course of conduct, and the totality principle.

15    The above passage was discussed by Snaden J in Pattinson (at [66] – [67]). His Honour (at [67]) said as to this passage:

With respect to his Honour, I read Parker in a more constraining way: namely, as authority for the proposition that, when assessing the character (or nature or gravity or seriousness) of particular contravening conduct, the court must not take account of the contravener’s history of similar conduct…

16    Respectfully, in my view there is no dissonance between the reasoning expressed by Wheelahan J in the Syme Library Case and that of the Full Court in Parker.

17    In The Bay Street Case Bromberg J (at [15]) referred to (and conveniently repeated) his Honour’s own survey of the authorities concerning the principles generally relevant to the imposition of civil penalties in Cardigan St Case at [48] – [54]. I have extracted this passage above.

18    In Pattinson, Snaden J (at [34] – [49]) surveyed the authorities in this Court preceding Parker, including the separate judgments of the majority (Tracey and Logan JJ) in The Broadway on Ann Case. At [42], Snaden J referred to the following passages from the judgment of Logan J (with whom Tracey J agreed):

69    We are bound by Commonwealth v Director, FWBII to recognise and give effect to a civil penalty regime the purpose of which is ensuring compliance with norms of industrial behaviour prescribed by Parliament in the public interest. To view the conduct of the CFMEU on 10 February 2015 in isolation from the past and to penalise on the basis that there have been worse cases is to fail to recognise that the conduct is but a further manifestation of a lengthy and repeated pattern of unrepentant, outlaw behaviour by the CFMEU.

…

77    Once the contraventions on the day, deplorable in themselves, are viewed in context, they are, in my view, of the worst possible kind. Common sense, to say nothing of the maintenance of the rule of law, dictates that this must be so. Each contravention well warrants the maximum penalty. Laws which may be ignored at will on the basis of a persistent, self-arrogated, alternative standard of behaviour are no laws at all, only empty aspirational statements.

…

87    …So recalcitrant is the contravening conduct charged having regard to the past history…and such is the importance of deterrence and compelling conformity with the requirements of the [FW Act] my view is that only the most condign penalisation of a cumulative maximum punishment is warranted in the circumstances of this case. I would impose that so as to bring home emphatically to the CFMEU that, in its internal governance, it must force systemic behavioural change upon its Construction Division.

19    In my view, the reasoning by Tracey and Logan JJ is entirely congruent with the proportionality principle. The Commission’s analysis of the Union’s offending history provided in this case demonstrates that the Union has, as Logan J (at [69]) said, been engaged in “a lengthy and repeated pattern of unrepentant, outlaw behaviour…”. Where, as in The Broadway on Ann Case and in the many cases since, including the present case, the Union continues to arrogate to itself the licence to decide if, and how, it and its officers may behave, irrespective of the relevant proscriptions of the Act, in my opinion it would be contrary to the intention of s 546(1) of the Act to determine an appropriate penalty in isolation. I respectfully reiterate what Wheelahan J (at [96]) said in the Syme Library Case:

…what might in isolation and superficially be a minor contravention may take on the complexion of a much more serious contravention.

20    The reasons for deploring such systematic disobedience have been explained repeatedly by judges of this Court. Unfortunately, it may be inferred from the Union’s history of offending to which I shall refer below, that the principal objective of deterrence has not been achieved, irrespective of the level of the penalty. Section 546(1) of the Act requires that the Court must wrestle with the determination of an appropriate penalty in every case, notwithstanding the apparent impotence of the sanction in the case of the Union.

21    I have no wish to add my voice to the chorus of condemnation of the Union’s systematic unlawfulness, for there is nothing of substance to add to what has already been said repeatedly. Indeed the Union’s unabated recidivism is reason to infer that the more often condemnation to the same effect is repeated with no apparent deterrent effect, the more emboldened the Union may become in its defiance.

22    In circumstances that may correctly be characterised as I have above, it is open for a court to conclude that the aggregation of the anterior offences should be given such weight as appropriate, even if that results in relatively minor individual instances being characterised as falling within “the worse category of case” and therefore justifying the maximum penalty. In my view, such a conclusion is not offensive to the proportionality principle. It is but a recognition that individual instances of concerted, unlawful and self-arrogated behaviour may reasonably be characterised as meeting the description of the “worst category of cases” when considered in the context of such intractable recidivism. In this context every instance of contravention may be viewed as layered upon earlier instances, such that each instance becomes part of a laminated course of conduct.

23    The consideration to be given to anterior offending discussed above is consistent with the majority in The Broadway on Ann Case. In particular, it is consistent with the approach to anterior offences referred to (at [77]) by Logan J:

Once the contraventions on the day, deplorable in themselves, are viewed in context, they are, in my view, of the worst possible kind.

24    In the absence of more recent Full Court authority that has held The Broadway on Ann Case to be “plainly wrong”, I do not consider the later Full Court decisions in Auimatagi, The Non-Indemnification Personal Payment Case or Parker to have overruled The Broadway on Ann Case. As Snaden J observed (at [53]) in Pattinson:

Broadway on Ann was not referred to in Parker, let alone disavowed.

It is well accepted that a full court will follow earlier full court decisions unless found to be plainly wrong: SZEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; 150 FCR 214 at 257 per Allsop J (as his Honour then was). See also BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; 162 FCR 234 at 253-254 per Greenwood and Gett v Tabet [2009] NSWCA 76; 254 ALR 504 at 563, 566-567 per Allsop P (as his Honour then was), Beazley and Basten JJA.

25    In the absence of any express disavowal of The Broadway on Ann Case it is unnecessary, and in my view undesirable, for me to express any view about the difference of opinion between Snaden J and Bromberg J concerning the effect of Parker. In any event, I note that the reasons given by Bromberg J (at [19] and [20]) concerning the effect of Parker were based upon the adoption in Parker of the principles expressed by the majority (at 477-478) in Veen (No 2).

26    In the Bay Street Case (No 2) Bromberg J (at [20]) referring to the proportionality principle said:

There can be no doubt that those principles state the law and are binding upon a single judge of this Court. As for the first of those principles, I understand the analysis in Parker to be emphasising that the penalty imposed must be proportionate to the gravity of the instant offence rather than proportionate to the gravity of the contravener’s history of offending. In my respectful view, an approach to proportionality focused upon the gravity of the contravener’s offending rather than the gravity of the instant contravention invites error.

27    Respectfully, for the reasons given above, the two subsidiary principles as they are described by the majority in Veen (No 2) are complimentary. The latter does not preclude a consideration of the instant offence in the context of a history of anterior contraventions. The factors adopted (at [15]) by Bromberg J in the Bay Street Case (No 2), referring to the considerations set out in the QLD Infrastructure Case at [103], included:

…whether the contravention comprised isolated conduct, or was systematic or occurred over a period of time…

It seems to me to be incongruous to take into account systematic conduct in an instant case but not give the same consideration to the systematic character of the instant contravention as may be inferred from an anterior body of offences. With respect, the risk of error apprehended by Bromberg J in the last sentence of [20] quoted above, does not arise if it is understood that the proportionality principle is the guiding constraint and the “second subsidiary principle” as described by the majority in Veen (No 2) (at 478), namely that “the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases”, would be contravened, “only if the case is recognizably outside the worst category”. Thus the task is one of characterisation of the instant contravention in context, where relevant giving appropriate weight to anterior contraventions. This task is a part of the broader task 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]. See also Pattinson at [26] and the authorities therein referred to.

Prior contraventions by the Union

28    The Commission provided the Court with a table setting out a summary of the prior contraventions by the Union. The analysis indicates that between approximately 1999 and April 2018 that the Union, or its predecessor, had been involved in 138 contraventions of the FW Act. At the hearing of the application, this information was updated to include contraventions which had been dealt with in the time between the preparation of the Commission’s written submissions and the hearing. This summary revealed that a further 15 contraventions had been dealt with between April 2018 and the hearing of the present application on 18 March and 17 April 2019. The Commission also provided an analysis of contraventions involving the Union, or its predecessor, of s 500 of the FW Act, as a subset of the global data concerning contraventions of the FW Act. This analysis revealed that the Union had contravened s 500 of the FW Act on 26 separate occasions. The Union’s history of contraventions of the FW Act, considered in light of the demonstrable absence of remorse, to which I shall refer below, leads me to conclude that the instant contravention is, as Wheelahan J said in the Syme Library Case (at [96]):

… a manifestation of a continuing attitude of disobedience to the law.

Prior contraventions by Mr Tadic

29    The Commission further provided an analysis of prior contraventions involving Mr Tadic. Mr Tadic had been involved in four contraventions. See Cahill v CFMEU [2008] FCA 495; White v CFMEU [2011] FCA 192; Cozadinos v CFMEU [2011] FMCA 284 and Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Bendigo Theatre Case) (No 2) [2018] FCA 1211.

Absence of remorse

30    The history of offending by the Union and by Mr Tadic must be seen in the context of their failure to express any remorse concerning the instant contravention, or to offer any assurance that such conduct would not be repeated, including the absence of any evidence concerning steps taken, or to be taken, to avoid further contraventions of the FW Act. Indeed, the posture of the Union and Mr Tadic before me was bereft of contrition. This is evident from the following exchange with counsel for the Union and Mr Tadic:

HIS HONOUR: Well, that’s what I was going to ask you to address me about in due course, when it suits you, is whether you have instructions to say whether or not Mr Tadic accepts that his conduct the subject of this hearing – or the subject of the penalty – was wrongful, whether you have instructions to offer any apology or any assurance as to why it won’t be repeated or whether he gives any assurance as to not repeating that conduct in the future. There doesn’t seem to be any evidence or, indeed, any submissions about the sorts of matters that go to what I would expect would normally be put before the court concerning the attitude of the person found to have contravened the Act in relation to his conduct and how he might conduct himself in future.

MS KELLY: Your Honour won’t find evidence of that kind.

HIS HONOUR: No.

MS KELLY: And evidence of that kind won’t be given.

HIS HONOUR: And you don’t have instructions to give any apology or to give any assurance on behalf of Mr Tadic or on behalf of the union in relation to those sorts of matters?

MS KELLY: I don’t have those instructions, no, your Honour.

Mr Tadic’s conduct

31    It was submitted on behalf of the Union and Mr Tadic that the contravention should be considered against the background that Mr Tadic had a lawful right to enter the site under s 87 of the Occupational Health and Safety Act 2004 (Vic) (the OHS Act) and also in the context that when Mr Tadic attempted to do so he was met with a hostile reception by the occupier, who reported Mr Tadic to the police as a trespasser. It was submitted that Mr Tadic waited patiently, for hours, for the police to attend. In light of the hostile reception he received from the occupier, Mr Tadic sought the assistance of WorkSafe. Mr Tadic’s request for assistance led to Mr Sharples attending the site on behalf of WorkSafe. It was submitted that beneficial weight should be given to the finding by the primary judge that Mr Tadic’s views about the seriousness of the dangers on the site were justified and that he was acting from a genuine, serious and warranted concern about the safety of the workers. I have taken this factor into account in determining an appropriate penalty to be imposed on Mr Tadic and on the Union.

32    Unfortunately, Mr Tadic’s conduct went beyond what was justifiable in pursuit of the protection of the health and safety of workers on the site. It strayed into the realm of intimidation and abuse directed at a WorkSafe official attempting to discharge his duties, which were aimed at the same objective, namely to protect the health and safety of workers. Mr Tadic’s conduct impeded Mr Sharples in the discharge of his statutory duties. In particular, Mr Tadic refused to comply with two requests by Mr Sharples to limit his questions and comments until the end of Mr Sharples’ visit. Mr Tadic swore at Mr Sharples in the course of criticising Mr Sharples and while expressing criticisms of the safety conditions at the site. Mr Tadic accused Mr Sharples of being the worst inspector he had seen and in a raised voice accused him of being “pathetic”. At one point, Mr Tadic asked Mr Sharples rhetorically “are you applying for a job with the builder?” and in another, said to Mr Sharples “this is not over”. The rhetorical question impliedly accused Mr Sharples of not carrying out his statutory duties because of an improper conflict of interest. There was no basis for that accusation and although it may have been said for rhetorical effect it was both nasty and apt to intimidate Mr Sharples while going about his duties on behalf of WorkSafe.

33    The permit Mr Tadic had to enter the site was not a license to bully, intimidate or threaten Mr Sharples, or anyone else for that matter, however bona fide Mr Tadic’s concerns may have been concerning the safety conditions of the site. Mr Tadic had a lawful right to enter the site for the purposes of protecting the health and safety of workers. That right carried with it the concomitant obligation to exercise that right for the purpose for which it was conferred. In my view Mr Tadic abused that power by his conduct towards Mr Sharples. Such conduct would not be tolerated in a workplace as between employees or as between an employer and employee. Mr Tadic’s behaviour, by any measure, amounted to bullying and intimidation. Mr Tadic’s intimidating and obstructive behaviour, viewed in the context of his abuse of the right to enter the site falls within or close to the worst category of cases for contravention of s 500 of the FW Act.

34    It was accepted on behalf of the Union and Mr Tadic that the predominant, and perhaps only, purpose of civil penalty provisions is deterrence, both specific and general. Intimidating and abusive behaviour by a union official permitted to enter a site for the vital purpose of protecting the health and safety of workers on the site must be condemned in the strongest terms. The legitimate interest of a Union to enter a workplace for health and safety reasons must not be allowed to become an opportunity for a Union official, under the cloak of a legal right to enter the site, to disregard the most basic norms of behaviour. Mr Tadic’s genuine concern for the safety of workers on the site does not excuse his behaviours towards Mr Sharples.

35    I have referred above to the incidents of contraventions by the Union and by Mr Tadic. The contraventions in which Mr Tadic has been involved are of course far less extensive than those of the Union. However, Mr Tadic’s conduct in the Bendigo Theatre Case has striking similarities to his conduct in the instant case and should be taken into account in determining an appropriate penalty for the instant contravention.

36    In considering an appropriate penalty for Mr Tadic, as I have said I regard the conduct in the instant case as falling within or close to the worst category of cases of this kind. Further, the absence of any remorse, or apology, or any assurance that such conduct will not be repeated, in my view makes it appropriate to impose a penalty close to the maximum. In recognition of the finding by the primary judge that Mr Tadic was motivated by a genuine concern for the health and safety of the workers on the site, I have discounted the penalty from the maximum of 60 penalty units to 50 penalty units, which equates to a monetary penalty of $8,500.

37    As I have said, the Union does not dispute that it is accessorily liable for Mr Tadic’s contravention. Although I have concluded that the maximum penalty should be discounted in the case of Mr Tadic, that discount, nor any discount, from the maximum penalty is not warranted in the case of the Union. For the reasons I have explained above, when the instant contravention is seen in the context of the intractable recidivism of the Union, in my opinion it is properly characterised as within the worst category of cases. Accordingly, I have concluded that the maximum penalty of 300 penalty units should be imposed upon the Union, being the monetary sum of $51,000. I am fortified in this conclusion by the Union’s disdain in submissions before me of any expression of remorse or assurance as to future conduct, taking into account also the primary objective of deterrence, both general and specific.

38    In imposing the maximum penalty on the Union I have also taken into account the substantial financial resources of the Union. At the hearing, the Commission tendered the most recent financial statements of the Union, which covered the period until 31 March 2018. The Statement of Profit or Loss and Other Comprehensive Income for the year ended 31 March 2018 disclosed a net surplus of $9,773,846 and other comprehensive income of $5,030,066, resulting in a total comprehensive income of $14,764,600. The Statement of Financial Position as at 31 March 2018 disclosed total members’ funds of $68,428,675. These financial statements are for the Construction, Forestry, Maritime and Energy Union Construction and General Division Victorian and Tasmanian Divisional Branch.

A personal payment order

39    The Commission seeks an order that the Union not indemnify Mr Tadic for the penalty imposed upon him. The power to make such order is found in s 546 of the FW Act: see Australian Building and Construction Commission v Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157. As I have said, the primary objective for the imposition of a civil penalty is to achieve a deterrent effect. The Union has readily accepted accessorial liability for Mr Tadic’s contravention. Mr Tadic was acting as an agent for, and on behalf of, the Union in entering the work site. He was not on any “frolic” of his own. Further, in my view, Mr Tadic’s conduct is more accurately characterised as forming part of the concerted course of conduct by the Union of disregarding lawful constraints upon its conduct as it sees fit, albeit that necessarily and directly the conduct is that of its officials. I am not persuaded in this case that there is any particular feature of Mr Tadic’s conduct which takes it outside the rubric of the Union’s course of conduct nor am I persuaded that it is likely the deterrent effect of the penalty imposed on Mr Tadic would be improved by a non-indemnification order.

Associate:

Dated:    27 February 2020