FEDERAL COURT OF AUSTRALIA

Chevron Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 3) [2020] FCA 451

ORDERS

THE COURT ORDERS THAT:

1.    Judgment is entered for the applicant.

2.    The respondent pay to the applicant damages in the amount of $3,000,000 (inclusive of GST and interest) in compensation for the applicant's irrecoverable loss and damage suffered as a result of the respondent's contravention of s 417 of the FW Act, as described in Chevron Australia Pty Ltd v The Maritime Union of Australia (No 2) [2016] FCA 768 (Contravention), in accordance with order 5.

3.    The respondent pay a pecuniary penalty to the applicant in respect of the Contravention in an amount of $30,000, in accordance with s 546 of the FW Act.

4.    For a period of 10 years commencing on the date of these orders:

(a)    the officers, officials and delegates of the Maritime Union of Australia Division are restrained from:

(i)    organising or engaging in any industrial action; or

(ii)    being involved in any industrial action,

in or in connection with any Project; and

(b)    employees or agents of the respondent are restrained from engaging in any of the conduct referred to in (a)(i) or (a)(ii) above, where:

(i)    they have engaged in that conduct at the direction or instruction of any officer, official or delegate of the Maritime Union of Australia Division; or

(ii)    any officer, official or delegate of the Maritime Union of Australia Division has organised, encouraged, counselled or procured them to engage in that conduct,

5.    The damages are payable to the applicant immediately upon:

(a)    any officer, official or delegate of the Maritime Union of Australia Division;

(b)    any employee or agent of the respondent under the direction or control of any officer, official or delegate of the Maritime Union of Australia Division; or

(c)    any MUA member under the direction or control of any officer, official, employee or agent of the respondent,

being found by a court of competent jurisdiction, in any proceedings whether brought by the applicant or not, to have engaged in or organised or been a person involved in industrial action, where that industrial action is in or in connection with any Project and occurs within a period of 10 years commencing on the date of these orders.

6.    There be no order as to costs.

7.    In these orders, the following terms have the following meanings:

(a)    'CFMMEU Rules' means the registered rules of the Construction, Forestry, Maritime, Mining and Energy Union, as amended or varied from time to time.

(b)    'delegate' means any delegate or steward of the Maritime Union of Australia Division or any delegate or steward of the CFMMEU under the direction or control of the Maritime Union of Australia Division.

(c)    'FW Act' means the Fair Work Act 2009 (Cth) as amended from time to time and any successor legislation;

(d)    'industrial action' has the meaning given in s 19 of the FW Act, but does not include protected industrial action;

(e)    'involved in' has the meaning given in s 550(2) of the FW Act;

(f)    'Maritime Union of Australia Division' means the division of the respondent established under r 27(i)(d) of the CFMMEU Rules and includes any MUA Divisional Branch;

(g)    'Maritime Union of Australia Division Rules' means the registered rules of the Construction, Forestry, Maritime, Mining and Energy Union, The Maritime Union of Australia Division, as amended or varied from time to time;

(h)    'MUA Divisional Branch' means any Divisional Branch established under the Maritime Union of Australia Division Rules;

(i)    'MUA member' means any person who is or is eligible to be a member of the Maritime Union of Australia Division pursuant to r 2(S) of the CFMMEU Rules or r 3 of the Maritime Union of Australia Division Rules;

(j)    'officer' includes the meaning given in s 12 of the FW Act and any Officer, including a Divisional National Officer or Divisional Branch Officer, elected or appointed under or pursuant to the CFMMEU Rules or Maritime Union of Australia Division Rules;

(k)    'Project' means any project asset in Australia majority owned or operated by the applicant (or a related body corporate), including:

(i)    the Gorgon Project;

(ii)    the Wheatstone Project;

(iii)    the WA Oil Project;

(iv)    the operation of any Project;

(v)    the development of any new Project asset, and any expansion of any Project, including but not limited to Gorgon Stage 2, Jansz-lo Compression and Clio-Acme;

(vi)    the operation of all marine vessels, including but not limited to export ships, all supply and delivery vessels, drilling rigs and vessels, pipe laying vessels, diving vessels, sub-sea installation and support vessels, and all barges, tugboats, floating accommodation vessels and facilities, work boats, pilot boats and crew change boats, where these are related to, or providing services in· or in connection with, any Project;

(vii)    the maintenance, shut down or modification of any Project;

(viii)    the operation of any supply base that is engaged to provide services to a Project, including but not limited to supply bases at Dampier, Henderson, Onslow and on Barrow Island, only to the extent that the supply base is providing services in or in connection with any Project; and

(ix)    any of the services outlined above provided by any contractor or subcontractor in or in connection with any Project;

(l)    'protected industrial action' has the meaning given in s 408 of the FW Act or any industrial action that attracts immunity under any amending or replacing legislation; and

(m)    'related body corporate' has the meaning given in s 50 of the Corporations Act 2001 (Cth) as amended from time to time and any successor legislation.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    On 22 June 2012 a specialised cargo ship called the RollDock Sun, operating with a foreign crew, arrived at the Australian Marine Complex at Henderson, Western Australia. The applicant, Chevron Australia Pty Ltd, chartered the RollDock Sun to transport critical freight to Barrow Island for its large scale civil construction works for the Gorgon Project. Barrow Island is some 130 kilometres off the coast of Western Australia.

2    The respondent union, at that time the Maritime Union of Australia (MUA), was opposed to Chevron's use of foreign crews. Under the guise of safety concerns, it organised members employed by Patrick Projects Pty Ltd to disrupt and delay loading on the RollDock Sun on 28 and 29 June 2012. The RollDock Sun eventually left for Barrow Island late, and little more than half loaded.

3    At the time, the Patrick employees were covered by an approved enterprise agreement being the Patrick Projects Pty Ltd AMC Cargo Handling Agreement 2012-2015 (Patrick Enterprise Agreement).

4    Chevron issued proceedings against the MUA relating to the disruption. Liability has been determined, and it now remains to deal with penalty.

5    Since liability was determined, the MUA amalgamated with the Construction, Forestry, Mining and Energy Union and the Textile, Clothing and Footwear Union of Australia, the amalgamated body becoming the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU).

6    Section 79 of the Fair Work (Registered Organisations) Act 2009 (Cth) deals with the amalgamation of organisations whilst proceedings are pending. It provides:

Where, immediately before the amalgamation day, a proceeding to which this Part applies was pending in a court or before the FWC:

(a)    the amalgamated organisation is, on that day, substituted for each de-registered organisation as a party; and

(b)    the proceeding is to continue as if the amalgamated organisation were, and had always been, the de-registered organisation.

7    In February 2019 orders were made substituting the CFMMEU for the MUA as the respondent in this proceeding in accordance with s 79(a). This explains why I refer to the MUA with respect to the particular impugned conduct in 2012, but refer more generally to the CFMMEU as the respondent to these proceedings.

Liability

8    On 18 April 2016 Gilmour J delivered the liability reasons in Chevron Australia Pty Ltd v The Maritime Union of Australia (No 2) [2016] FCA 768 and made the following declarations by consent, based on agreed facts and admissions:

1.    In contravention of section 417 of the Fair Work Act 2009 (Cth) (FW Act), during the nominal period of operation of the Patrick Projects Pty Ltd AMC Cargo Handling Agreement 2012-2015 (Enterprise Agreement), the first respondent organised employees of Patrick Projects Pty Ltd (Patrick) who were covered by the Enterprise Agreement, being the second to sixteenth respondents, to engage in unprotected industrial action on day shift on 28 June 2012 in the form of:

(a)    from around 7 am until 11 am, delays and restrictions on the performance of their allocated work on the loading operations for the vessel known as the RollDock Sun;

(b)    from around 11 am, a refusal or failure to perform their allocated work on the RollDock Sun loading operations.

2.    In contravention of section 417 of the FW Act, during the nominal period of operation of the Enterprise Agreement, the first respondent organised employees of Patrick who were covered by the Enterprise Agreement, being the second to sixteenth respondents, to engage in unprotected industrial action on day shift on 29 June 2012 in the form of a refusal or failure to perform their allocated work on the RollDock Sun loading operations.

Proposed relief

9    The parties have proposed certain relief by consent. In summary, they propose:

(1)    the CFMMEU pay a pecuniary penalty in an amount to be fixed by the Court;

(2)    the CFMMEU pay Chevron compensation in the sum of $3,000,000 for damages suffered as a result of its contravention of s 417 of the Fair Work Act 2009 (Cth) (FW Act), such damages to be payable upon any finding by a court of competent jurisdiction of industrial action relating to a Chevron project within a period of 10 years; and

(3)    an injunction be granted restraining the officers, officials and delegates from further industrial action in connection with Chevron projects.

10    The principles relevant to parties jointly seeking the making of orders by the Court in the context of a penalty and civil remedy regime were summarised by Gordon J in Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405:

[70]    The applicable principles are well established. First, there is a well-recognised public interest in the settlement of cases under the Act: NW Frozen Foods Pty Ltd v Australian Competition & Consumer Commission (1996) 71 FCR 285 at 291. Second, the orders proposed by agreement of the parties must be not contrary to the public interest and at least consistent with it: Australian Competition & Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 161 ALR 79 at [18].

[71]    Third, when deciding whether to make orders that are consented to by the parties, the Court must be satisfied that it has the power to make the orders proposed and that the orders are appropriate: Real Estate Institute at [17] and [20] and Australian Competition & Consumer Commission v Virgin Mobile Australia Pty Ltd (No 2) [2002] FCA 1548 at [1]. Parties cannot by consent confer power to make orders that the Court otherwise lacks the power to make: Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 163.

[72]    Fourth, once the Court is satisfied that orders are within power and appropriate, it should exercise a degree of restraint when scrutinising the proposed settlement terms, particularly where both parties are legally represented and able to understand and evaluate the desirability of the settlement: Australian Competition & Consumer Commission v Woolworths (South Australia) Pty Ltd (Trading as Mac's Liquor) [2003] FCA 530 at [21]; Australian Competition & Consumer Commission v Target Australia Pty Ltd [2001] FCA 1326 at [24]; Real Estate Institute at [20]-[21]; Australian Competition & Consumer Commission v Econovite Pty Ltd [2003] FCA 964 at [11] and [22] and Australian Competition & Consumer Commission v The Construction, Forestry, Mining and Energy Union [2007] FCA 1370 at [4].

[73]    Finally, in deciding whether agreed orders conform with legal principle, the Court is entitled to treat the consent of Coles as an admission of all facts necessary or appropriate to the granting of the relief sought against it: Thomson Australian Holdings at 164.

11    Such principles have more general application than under the consumer protection legislation considered in ACCC v Coles, and are apposite in the context of the FW Act: see generally Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 at [58], [103].

12    There are, however, aspects upon which the parties do not agree:

(1)    the seriousness of the conduct and where it sits in the spectrum of industrial action that comes before the courts; and

(2)    whether the two contraventions declared by the Court should give rise to one or two penalties.

Pecuniary penalty

Statutory context

13    Section 546(1) of the FW Act provides for the court to fix an appropriate penalty for a contravention of a civil remedy provision.

14    Section 417 of the FW Act relevantly provides:

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

No industrial action

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

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

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

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

Note:    This subsection is a civil remedy provision (see Part 4-1).

(2)    The persons are:

(a)    an employer, employee, or employee organisation, who is covered by the agreement or determination; or

(b)    an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity.

15    It is not in issue that the CFMMEU is an employee organisation covered by the Patrick Enterprise Agreement and so liable to a penalty for contravention of s 417.

16    Section 557 relevantly provides:

Course of conduct

(1)    For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:

(a)    the contraventions are committed by the same person; and

(b)    the contraventions arose out of a course of conduct by the person.

(2)    The civil remedy provisions are the following:

…

(j)    subsection 417(1) (which deals with industrial action before the nominal expiry date of an enterprise agreement etc.);

…

(3)    Subsection (1) does not apply to a contravention of a civil remedy provision that is committed by a person after a court has imposed a pecuniary penalty on the person for an earlier contravention of the provision.

17    Section 557(1) operates on its face to provide a degree of leniency in the imposition of a penalty by requiring the court to treat multiple contraventions of certain civil remedy provisions as a single contravention: Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (the Hutchison Ports Appeal) [2019] FCAFC 69 at [48]. However, s 557(3) of the FW Act operates to exclude from s 557(1) cases where a pecuniary penalty has already been imposed.

18    The operation of these provisions has been the subject of some controversy.

19    One question is whether s 557(3) should be construed narrowly, so that its operation is confined to circumstances where a party continued to engage in a course of conduct after already having received a pecuniary penalty relating to the same course of conduct, or should be construed more broadly, so that it operates even where the previous penalty arose out of a different course of conduct. A second question is whether, assuming the broader approach, s 557(3) operates to disqualify a person from the benefit of s 557(1) only where the prior penalty was imposed in relation to the same enterprise agreement.

20    The principles as to statutory construction are well known. The starting point for ascertainment of the meaning of a statutory provision is the text of the provision considered in light of its context and purpose. The meaning of the provision must be determined by reference to the language of the instrument viewed as a whole: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ); and ALDI Foods Pty Limited v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593 at [16] (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ). Context should be regarded at the first stage, not some later stage, and it should be regarded in its widest sense: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ). Where the text read in context permits more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies: Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 at [66] (Gageler and Keane JJ); and SAS Trustee Corporation v Miles [2018] HCA 55 at [20] (Kiefel CJ, Bell and Nettle JJ).

21    The Hutchison Ports line of cases has clarified aspects of the questions identified at [19] above about the construction of s 557(1) and s 557(3).

Hutchison Ports - the 'same course of conduct' question is resolved

22    In Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCA 934 (Hutchison Ports First Penalty) the primary judge imposed a single penalty on the respondent union, having made two declarations: first, the union contravened s 417(1) by organising industrial action by employees over a period of seven days at each of the Sydney and Brisbane international container terminals; second, the union was involved in contraventions of s 417(1) by the employees over the same time and at the same terminals. The same facts founded both conclusions.

23    Her Honour decided that s 557(3) of the FW Act should be construed to apply to pecuniary penalties that have previously been imposed on the same person in respect of the same course of conduct. As pecuniary penalties that had previously been imposed on the respondent for contraventions of s 417 '[had] nothing to do with the present case' (at [24]), her Honour held that s 557(3) did not prevent the respondent from relying on s 557(1), and that the contraventions were, by s 557(1), deemed to be a single contravention of s 417(1) of the FW Act (at [39]-[41], [49]). Her Honour was satisfied on the facts that the events that occurred in Sydney and Brisbane were contraventions arising from a single course of conduct (at [39]). Further, her Honour decided that even if s 557(1) did not apply, the common law course of conduct principle would apply (at [27]).

24    The narrow construction of s 557(3) favoured by the primary judge was rejected by the Full Court in Hutchison Ports Appeal. The majority (Ross and Rangiah JJ in separate reasons, Flick J dissenting) held that s 557(3) is not confined to circumstances where the prior penalty has been imposed for a contravention forming part of the same conduct that is before the Court.

25    Justice Ross concluded that a plain reading of the text supported this view, and that the reference in s 557(3) to 'an' earlier contravention indicates that the contravention does not have to have occurred in a particular context (at [45]-[46]).

26    Justice Rangiah also preferred a literal construction, which did not require the limitation applied by the primary judge. His Honour considered that the textual construction supports a consequence that s 557(3) may extend to cases where a pecuniary penalty has been imposed for an earlier contravention unrelated to the later course of conduct (at [170]-[176]).

27    On that basis the Full Court remitted the question of penalty to the primary judge for reconsideration.

Hutchison Ports - common law course of conduct principle continues to apply

28    Two other matters arise from Hutchison Ports Appeal. First, the Full Court confirmed the primary judge's view that the common law course of conduct principle applies even if s 557(1) does not apply. Rangiah J addressed the position as follows:

[180]    Section 557(1) of the FW Act deals with contraventions that 'arose out of a course of conduct'. The concept of a course of conduct is a familiar one in sentencing for criminal offences, and has been adapted to sentencing for civil penalty contraventions.

[181]    The common law course of conduct principle has been considered in a number of recent judgments of the Full Court. 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.

[182]    In contrast, under s 557(1) of the FW Act, multiple contraventions arising from a course of conduct are taken to constitute a single contravention, for which only a single penalty can be imposed. It may be seen that s 557(1) of the Act does not wholly adopt the common law course of conduct principle, but modifies it.

[183]    As I have said, s 557(1) of the FW Act was regarded in Rocky Holdings at [18] as a protection against double punishment. Seen in that context, s 557(3) withholds from a contravener a protection that would otherwise be conferred by s 557(1). However, s 557(3) does not remove the protection against double punishment conferred under the course of conduct principle. The primary judge held that where s 557(1) does not apply because of s 557(3), the course of conduct principle would apply, and I respectfully agree. If s 557(1) does not apply, a court is left with the instruction of s 546(1) to impose a pecuniary penalty that 'the court considers is appropriate'. Where there are multiple contraventions, assessment of an appropriate penalty must take into account whether the factual or legal circumstances overlap to an extent that there is a risk of multiple punishments for what is essentially the same contravention. In other words, the course of conduct principle must be considered.

[184]    Section 557(3) of the FW Act, having withheld the absolute protection against more than one penalty conferred by s 557(1), leaves the contravener with the same protection as a person who commits, within a single course of conduct, multiple contraventions of a civil penalty provision not set out in s 557(2). That protection is the course of conduct principle. That does not automatically or necessarily mean that a single penalty must be imposed, but, rather, that the sentencing court is left to decide what penalty is, or penalties are, appropriate.

(original emphasis)

Hutchison Ports - the 'same enterprise agreement' question raised

29    The second matter arising from Hutchison Ports Appeal is Ross J's view, noting that it was not a concluded view, that the scope of the s 557(3) exception remained confined in that the disqualification from the benefit of s 557(1) was limited to instances where a prior penalty has been imposed in relation to the same enterprise agreement or workplace determination. His Honour noted that the pecuniary penalties previously imposed on the MUA for contraventions of s 417(1) did not relate to industrial action during the term of the relevant enterprise agreement, and so assuming his view to be correct, s 557(3) would have had no application (at [71]).

30    I should add that it is not in dispute that this Court had, prior to the contraventions in this matter, imposed a pecuniary penalty on the MUA for an earlier contravention of s 417(1), but not with respect to the Patrick Enterprise Agreement: Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232 (Broome Airport) (organisation of a 24 hour strike at Broome Airport). In that matter the MUA and the Broome Port Authority were parties to the BPA Agreement 2008, a union collective agreement made under s 328 of the Workplace Relations Act 1996 (Cth) and that continued after the commencement of the FW Act, with a nominal expiry date of 31 October 2011. The s 417 breach related to that agreement. Clearly, the respective agreements are distinct.

31    In expressing his Honour's view on the topic, Ross J referred to Rocky Holdings Pty Limited v Fair Work Ombudsman [2014] FCAFC 62; (2014) 221 FCR 153 and Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (The Kane Constructions Case) [2017] FCA 168.

32    In Rocky Holdings the Full Court construed the reference to a civil remedy provision in s 557(2) in the context of s 44(1) and s 45 of the FW Act as a reference to a particular provision of the relevant National Employment Standard or a particular term of a modern award (at [8]).

33    In Kane Constructions Jessup J distinguished Rocky Holdings in the context of s 417, finding that the section is not concerned with a particular contravention of the underlying agreement but with conduct by way of organising or engaging in industrial action whilst there is an enterprise agreement in place.

34    Justice Rangiah in Hutchison Ports Appeal accepted that issues may arise from the reasoning in Rocky Holdings relevant to s 557(3), but preferred not to express any opinion as the matter had not been argued by the parties (at [189]).

35    Both Rocky Holdings and Kane Constructions are addressed in further detail below.

Hutchison Ports remittal for penalty

36    The matter was remitted by the Full Court to the primary judge for determination of penalty: Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 1942 (Hutchison Ports Second Penalty).

37    In Hutchison Ports Second Penalty, her Honour relied upon the determination in Hutchison Ports First Penalty that the conduct the subject of the declarations arose from a single course of conduct and proceeded on the undisputed basis that the common law course of conduct principle applied. Her Honour did not consider the matter to be one where the scope of s 557(3) as raised by Ross J in Hutchison Ports Appeal needed to be resolved, presumably because applying the common law course of conduct principle, it was appropriate that one penalty be imposed regardless. Her Honour then determined that the appropriate penalty for the contraventions arising out of the course of conduct was the same single penalty that she had considered appropriate in Hutchison Ports First Penalty, stating in Hutchison Ports Second Penalty:

[18]    … In my view, to impose two penalties as proposed by the FWO, would involve punishing the respondent twice for the same criminality. I say this because, as set out in the penalty reasons at [39], the respondent was involved in 'one concerted industrial campaign against HPA's proposed redundancies'. Having regard to this fact and the other matters referred to in my penalty reasons, in particular at [42], I consider that to impose two penalties as the FWO sought would involve double punishment which the course of conduct principle is intended to avoid. In contrast, the penalty of $38,000 adequately reflects the wrongdoing involved in the respondent's conduct and is an appropriate penalty in all of the circumstances.

The position of the parties in this case

38    Chevron contends that, applying Hutchison Ports Appeal, s 557(3) is engaged because of the MUA's previous contravention of s 417 of the FW Act, so that s 557(1) does not apply. It contends there were two contraventions as reflected in the two declarations made by Gilmour J, and the CFMMEU should be penalised by way of two penalties. Chevron contends that Ross J's approach to s 557(3), confining its operation to a contravention of the same enterprise agreement, was in error. It submits that such a proposition was decisively addressed and rejected by Jessup J in Kane Constructions, and I should follow that decision unless I am of the view that it is wrong.

39    The CFMMEU contends that Ross J's approach should be endorsed, and that as the prior contravention of s 417 did not relate to the same enterprise agreement, it is entitled to the benefit of s 557(1) and is to be penalised on the basis that there was one contravention. It says that in the alternative, the Court should apply the common law course of conduct principle and impose a single penalty.

Consideration - one course of conduct in this case

40    The sensible starting point in light of the clearly related circumstances of the contraventions in this case and the manner in which the arguments were framed, and taking into account the approach of the primary judge in Hutchison Ports Second Penalty, is to assess whether it is appropriate in any event that, having regard to the common law course of conduct principle, only one penalty should be imposed for the contraventions. Section 557 does not cover the field and does not exclude the common law principle of taking into account, when imposing a penalty, whether the conduct complained of constituted a single course of conduct. Therefore, even if s 557(1) is not enlivened, so that the contraventions are not deemed by that provision to be a single contravention, it may be appropriate that a single penalty be imposed.

41    The reasons of the primary judge in Hutchison Ports First Penalty are instructive on these matters:

[33]    On the facts as found in the principal reasons it is apparent that the MUA was engaged in one overall concerted action to bring industrial pressure to bear on HPA not to implement the proposed redundancies at the Sydney and Brisbane terminals in a manner which the MUA considered would be in breach of the enterprise agreement, would result in the unlawful termination of around 100 employees, and destroy its own capacity to continue to function as an effective industrial organisation. On this basis the MUA organised industrial action by employees once, with that industrial action organised to occur in two locations, Sydney and Brisbane.

…

[38]    I do not accept that, merely because 'organising' industrial action within the meaning of s 417(1) is different from being 'involved in' employees engaging in industrial action as provided for in s 550(1), the MUA's conduct in the present case involved two different courses of conduct. As the principal reasons disclose, the same facts founded my conclusions the MUA both organised industrial action and was involved in employees engaging in industrial action. In short, the acts which led me to find the MUA organised the industrial action also led me to find that the MUA was involved in employees engaging in the industrial action. It is difficult to conceive of a case in which a finding of 'organising' industrial action would not also necessarily prove being 'involved in' employees engaging in industrial action but for present purposes it is sufficient that the same acts resulted in two sources of liability. There was thus a single course of conduct by which the MUA organised industrial action and was involved in employees engaging in industrial action.

[39]    As to the Sydney and Brisbane terminals, again, I accept that different MUA personnel were involved at some lower levels of action but it is also apparent from the principal reasons that the MUA was engaged, from its highest level down, in one concerted industrial campaign against HPA's proposed redundancies. While the corporate entities in Sydney and Brisbane were different, they were related HPA companies and, on the facts found in the principal judgment, the MUA was implementing a single plan directed at HPA as the ultimate corporate owner of both ports.

[40]    For these reasons also I am satisfied that what occurred in Sydney and Brisbane were contraventions arising from a single course of conduct by the MUA.

42    Turning to this case, it is clear that the events of 28 and 29 June 2012 the subject of the declarations in the liability reasons were part of the one overall concerted action to bring industrial pressure to bear on Chevron not to use foreign labour on the Gorgon Project. The use of the RollDock Sun was seen as an opportunity by the MUA to pursue that campaign.

43    The facts as summarised by Gilmour J refer to the pre-existing MUA campaign against Chevron (at [29]); the inquiries made in advance of the RollDock Sun's docking on behalf of the MUA as to the status of its permits (for example, at [32]); and the 'opportunity' provided by its arrival for the campaign, including for a 'blue', protests and a community picket (for example, at [34], [38], [43]-[44], [47]-[48], [50]). The use of safety issues as a device was clearly planned: see the email quoted by Gilmour J at [55] in these terms:

Gents, we have been fucking this vessel about for the last 2 days, and there is a Pin Notice on the wharf were the vessel is berthing. Once that has run its cause, then we intend to ask for the Asbestos free Certificate, of which they will not have, once that is sorted, we will then make them lower the cranes and check all the certs for lifting e.g. wires,shackles spreaders. Once that is done we want the crane load charts as per Work safe regs, Once that is done it will be Christmas, then we will look at a community picket. then we will also be fucking around with the ITF crew, and, I am also talking to Schenker, as the vessel is 4 days late now. going OK regards in struggle …

44    The operations to be conducted in terms of loading the RollDock Sun were a standard form of stevedoring at the Australian Marine Complex at Henderson, and the stevedoring employees were experienced (at [18], [63]-[65]). A full safety audit had been conducted by representatives of Patrick and the MUA on the RollDock Sun on 15 June 2012 and as a result, Patrick management decided to implement a 'stop for safety' over 26 and 27 June 2012, in part to try to resolve any genuine safety issues and because it sensed that a serious industrial situation was developing and it hoped to relieve some pressure (at [68]-[69]).

45    On 26 June 2012 the MUA held a stop work meeting and conducted rallies around Australia to protest about the use of foreign labour on the RollDock Sun (at [73]-[80]).

46    By the afternoon of 27 June 2012 Patrick management decided to recommence loading operations, sending out SMS messages to those persons assigned to the operations (at [81]-[82]).

47    That evening various emails were issued, including by an MUA organiser, raising alleged safety issues (at [83]-[84]), issues that were subsequently found by Gilmour J to be insubstantial and a pretext (at [112]-[113]).

48    On the morning of 28 June 2012 the day shift began at 6.00 am, but by 8.15 am no operational work had commenced. Workers were 'sitting around and conducting their pre-start safety procedures very slowly and not as normally performed', resulting in a ban, restriction or delay in the performance of work. Their conduct during that shift comprised industrial action within the meaning of s 19(1)(a) of the FW Act (at [86]-[88]).

49    From 11.00 am on the same day, a question arose as to the insertion of a 'man overboard' safety concern in the job hazard analysis, a concern that was accepted by Gilmour J to be a ruse or pre-text. It had never before been raised as a reason to stop work. A concern was also raised about the distance of a crane slew as a safety issue, an issue that had not previously been raised in any substantive way (to the extent there was an issue, it was apparently remedied by moving the vessel 25m). These issues were raised by Craig Wilkins, a member of the MUA and employed by Patrick to undertake maritime cargo handling work on the Gorgon Project (at [89]-[97]). Patrick management directed the relevant persons to commence work and load the RollDock Sun, but they refused to do so.

50    It was accepted that the conduct in refusing or failing to work was not based on a reasonable safety concern and was industrial action within the meaning of s 19(1)(b) and/or (c) of the FW Act.

51    On 29 June 2012 individual persons were allocated to work the day shift on loading operations on the RollDock Sun. They were asked by Patrick management to undertake their work on the RollDock Sun and refused to do so.

52    Because of its relevance to Chevron's submissions, I include the record of events of that morning as reported in the liability reasons (Damian Burton being the Patrick management representative, Heath being an MUA organiser and Smith being an Assistant National Secretary of the MUA):

[101]    At approximately 6.30 am, Damian Burton went to the team leaders' hut, looking for Craig Wilkins. Wilkins was there. Robert Smith was also there and was on his mobile phone. Burton had a conversation with Wilkins to the following effect:

Burton:    'Has anything changed since yesterday? Will you guys work the RDS? If not, I'd prefer to do this the easy way, without extended drama.'

Wilkins:    'I don't think anything has changed, but you should speak with Doug Heath.'

Burton:    (Turning to Robert Smith) 'If you are on the phone with Doug Heath, can I speak with him?'

Smith handed Burton the phone and Burton spoke with Heath through it, having a conversation to the following effect:

Burton:    'Has anything changed? Will the guys work the RDS?'

Heath:    'No.'

Burton:    'I don't want to inflame the situation more by repeating what happened yesterday. I will take the guys in to the training room and go through the same process as I went through yesterday. That is, I am going to ask them to go out to the workplace and follow their allocation, that is, work on the RDS.'

Heath:    'They won't do it.'

Burton:    'If that is the case, I will stand them down again.'

Heath:    'Do what you need to do.'

Burton handed the phone back to Smith and asked Wilkins to gather the stevedores and meet him in the training room.

53    The conduct on 29 June 2012 comprised industrial action within the meaning of s 19(1)(b) and/or (c) in breach of s 417 of the FW Act (at [103]-[105]).

54    Later that evening Patrick obtained an order from Fair Work Australia directing the MUA and Patrick's employees to stop engaging in the industrial action (at [106]).

55    As to the liability of the MUA, Gilmour J found as follows:

[108]    By reason of the above, in breach of s 417 of the FW Act, as part of its industrial campaign against Chevron's use of foreign labour, particularly in relation to the foreign-crewed RDS, the MUA organised for the stevedoring employees of Patrick assigned to LOLO operations on the RDS, including the individual respondents, to engage in unlawful industrial action during the nominal term of the Enterprise Agreement on 28 June 2012 and 29 June 2012.

[109]    The organisation of the industrial action was primarily carried out by Chris Cain, Doug Heath and Wade Eaton. It was done with the knowledge and consent of the most senior officials of the MUA, including Paddy Crumlin and Mick Doleman.

[110]    Accordingly, the MUA has committed contraventions of s 417 of the FW Act by organising the following industrial action during the nominal term of the Enterprise Agreement:

(a)    on day shift 28 June 2012, the initial delays to work and subsequent refusal or failure to work by the individual respondents;

(b)    on day shift 29 June 2012, the refusal or failure to work by the individual respondents.

…

[112]    However, it is of critical importance that the particular conduct of the MUA which constituted the contraventions be characterised. As I will explain shortly in greater detail, I find that the conduct of the MUA was deliberate and that the safety issues, said at the material time by the MUA to justify the industrial action on each day, were just a pretext. The real reason for the unprotected industrial action was to promote the MUA's otherwise lawful campaign against Chevron's use of foreign crew on vessels.

[113]    I have inferred from the evidence generally, but in particular the evidence constituted by the chain of emails passing between the MUA and employees of Patricks, that the MUA, as part of its campaign against Chevron in relation to foreign crewed vessels, organised the second to sixteenth respondents to engage in unprotected industrial action on 28 and 29 June 2012 on the basis of asserted safety issues which were, in fact, a pretext. The asserted safety concerns did not meet the statutory test to render the industrial action lawful.

[114]    This conduct by the MUA constituted two contraventions of s 417 of the FW Act.

[115]    Senior Counsel for the MUA expressly acknowledged that this characterisation of the MUA's conduct and its effect at law was fair and that I should proceed on this basis.

[116]    This concession was made by the MUA on the basis that it would flow through to the issue of any civil penalties which might be ordered against it and, if relevant, the further issue of compensation.

56    It is readily apparent that the contraventions arose out of the one course of conduct.

57    As the liability reasons disclose, the same facts founded his Honour's conclusions that the MUA organised employees to engage in unprotected industrial action over the course of two days. The same site and vessel were involved. The events occurred on consecutive days and comprised a continuation of conduct on the MUA's part. The reliance on safety issues with no real substance underlined the delay and refusal to work on both days. Indeed, as the email exchange included at [52] above indicates, 'nothing had changed' in terms of the MUA's approach.

58    Chevron accepted that it was open to find in the circumstances of the contraventions referred to in the declarations that there was one course of conduct within the common law principle. It accepted that the principle applies even where s 557(1) is inapplicable.

59    However, Chevron submitted that the overlap of the organising role of the MUA across the two days of unlawful industrial action was not complete. In particular, it refers to separate SMS messages sent with respect to the organisation of industrial action on each day; and it refers to the elevated role of the MUA in organising the repetition of the ban on loading the RollDock Sun on 29 June 2012, as evidenced by the communications referred to at [52] above. I do not find those distinctions convincing or of substance in the context of penalty. The events of 29 June 2012 were in effect a continuation of the events of 28 June 2012. The imposition of two penalties would involve punishing the CFMMEU twice for what was in effect the same opportunistic conduct of identifying gratuitous safety issues and seeking to rely on them as justification for delay and disruption.

60    For reasons I will turn to in determining the amount of the penalty, there is no doubt that the conduct was serious and intended to cause harm to Chevron. However, even allowing for the fact that there are separate contraventions recorded by the declarations, it is appropriate that there be one penalty in this case having regard to the course of conduct principle.

61    It is therefore apparent that the question raised by Ross J in Hutchison Ports Appeal as to the scope of s 557(3) is not determinative in this case. However, both parties made submissions on the question and I will therefore address it before determining relief.

Scope of s 557(3)

62    In Rocky Holdings the Full Court considered s 44 and s 45 of the FW Act. Those sections relevantly provide:

44    Contravening the National Employment Standards

(1)    An employer must not contravene a provision of the National Employment Standards.

…

45    Contravening a modern award

A person must not contravene a term of a modern award.

63    In the context of these sections, the Full Court considered a number of contraventions of each of s 44(1) and s 45 in circumstances characterised as the same course of conduct. The contraventions related to discrete provisions of the National Employment Standards (NES) and the modern award. The Court described the issue as whether a 'civil penalty provision' means s 44(1) and s 45 of the FW Act, or 'a provision' of the NES and 'a term' of a modern award (at [8]). The appellants contended that the proper construction was that there were only two civil remedy provisions referred to, being s 44(1) and s 45. Separate breaches of different terms of the NES caught by, for example, s 44(1), were to be treated under s 557(1) as a single contravention of one civil remedy provision, being s 44(1). The Full Court rejected the appellant's argument, relevantly stating:

[13]    Second, the construction is not supported by the text of the Act. The reference in s 557(1) to 'a civil remedy provision referred to in subs (2)' discloses that it is the provision which is relevant. Section 557(2) identifies each of ss 44(1) and 45 as a civil remedy provision. It is the substance of those provisions which create the proscriptions. Section 44(1) proscribes contraventions of a provision of the NES. Section 45 proscribes contravention of a term of a modern award. The appellants' alternative contention treats the references to ss 44(1) and 45 (and every provision listed in s 557(2)) as a reference not to the substance but to the mere existence of the provision irrespective of the nature of the contravention the provision creates. Section 557(2) should be recognised to be a form of definitions provision. It defines civil remedy provisions for the purposes of s 557(1). The function of s 557(2) is to indicate that when a provision is identified, it is the substance of the provision found elsewhere in the Act (in this case, in ss 44(1) and 45) which is the civil penalty provision. As the FWO put it in written submissions:

However, section 557 also operates on contraventions which relevantly occur when a term of an award or a provision of an NES is contravened. This now occurs indirectly through the operation of sections 44 and 45. In the case of s 45 (for example), the contravention occurs when a term of a modern award is contravened. Thus the effect of subsection 557(1) in relation to contraventions of s 45 is that:

… 2 or more contraventions of (a term of an award) are, subject to subsection 3, taken to constitute a single contravention …

The appellants construe s 556 as if it said that 2 or more contraventions of an award or 2 or more contraventions of an NES are taken to constitute a single contravention.

[14]    Third, and contrary to the appellants' case, subss 557(1) and (2) are ambiguous. They are capable of being read as referring to the existence of the identified provision (the appellants' case) or the substance of the identified provision (the case for the FWO). Accordingly, regard may be had to the Explanatory Memorandum for the Fair Work Bill 2008 (Cth) (s 15AB(1)(b) of the Acts Interpretation Act 1901 (Cth)). The Explanatory Memorandum at [2189] and [2190] gives two examples of the operation of s 557(1) as follows:

For example, if a company contravenes a single term of a modern award in respect of ten employees, these ten contraventions are taken to be a single contravention. This means that the maximum penalty that the Court can impose for the contravention is 300 penalty units.

Similarly, if a company contravenes five separate terms of a modern award in respect of ten employees, these 50 contraventions are taken to be five contraventions. This means that the maximum penalty that the Court can impose is five times a maximum penalty of 300 penalty units.

[15]    Each example is consistent with the construction the FWO advances. In contrast, no example equivalent to the present case is provided. More importantly, [2189] and [2190] refer to 'a term of a modern award', which is the substance of s 44 of the Act. In so doing, the Explanatory Memorandum implicitly assumes a position contrary to the appellants' argument.

[16]    Fourth, the difference in language between s 557 and its predecessor provisions (the predecessor provisions are s 719 of the Workplace Relations Act 1996 (Cth) and s 178 of the Industrial Relations Act 1988 (Cth)) are differences in form rather than substance. …

[17]    The difference in language which is said to assume importance is that ss 178(2) and 719(2) both referred to a 'breach of a term of an award' or a breach of an 'applicable provision' whereas, and by way of contrast, s 557(1) now refers to 'contraventions of a civil remedy provision …'. The difference in substance to which the appellants point assumes the appellants' construction is correct. Thus, it assumes that when referring to the identified provisions in s 557(2) it was the existence rather than the substance of those provisions which is engaged. This is the difference in language. If, however, an orthodox approach is taken so that, when a provision is identified, it is the substance of the provision which is engaged (which is the effect of s 12 of the Acts Interpretation Act 1901 (Cth) requiring every section of an Act to be treated as a substantive enactment), then there is a difference in form only between s 557 and its predecessors. To use the appellants' language, it seems counter-intuitive for the legislature to have made such a fundamental change by such a side wind. In further support of this conclusion there is nothing apparent in the legislative scheme or otherwise which indicates that there was intended to be any change in the object and purpose of s 557 of the Act compared to its predecessor provisions. …

64    As to this extract, Ross J stated in Hutchison Ports Appeal:

[69]    If the approach taken in Rocky Holdings to award breaches is applied to s 417(1) contraventions then industrial action organised by officers of an employee organisation where there are multiple in-term enterprise agreements covering the relevant organisation, would be regarded as giving rise to contraventions of separate civil remedy provisions for the purposes of s 557(1). This would be so even if all of the relevant enterprise agreements operated at a single site or applied to the same employer.

[70]    The application of Rocky Holdings also has consequences for the construction of s 557(3), given that the relevant expressions in each subsection are almost identical. Section 557(3) would only disentitle an organisation of the benefit of s 557(1) if the earlier contravention of s 417(1) was in relation to the same enterprise agreement which is the subject of the present proceedings. This reading would avoid s 557(3) constituting a 'one strike' rule, as concerned the primary Judge in the instant case.

[71]    Applying this reasoning to the instant case it would follow that s 557(3) had no application because the pecuniary penalties previously imposed on the MUA for contraventions of s 417(1) did not relate to industrial action during the term of the enterprise agreement concerned in the present matter.

[72]    Absent such a reading of s 557(3), a single breach of s 417(1) would forever disentitle an organisation from the benefits of s 557(1) in circumstances completely unrelated to the prior breach. Such a result seems incongruous given that, applying Rocky Holdings, an employer is only denied the benefit of s 557(1) in respect of, say, a breach of the wages term of an enterprise agreement if they have previously contravened the same term of that agreement. Hence, if the enterprise agreement is replaced by a new agreement, the employer, as it were, starts with a clean slate.

65    In Kane Constructions, Jessup J considered s 417 and distinguished Rocky Holdings as follows:

[66]    In my view, the present case is to be distinguished from the two just referred to [Rocky Holdings and QR Ltd]. The existence of an in-term enterprise agreement is an element of liability arising under s 417, but the section is not concerned with a contravention of the agreement, or a term of it. The substance of the norm for which the section provides is exactly the same as between two or more employees each of whom is covered by a different enterprise agreement: he or she must not organise or engage in industrial action.

66    The issue is not without difficulty. Nor is it without importance.

67    Expressed generally, on Jessup J's reasons, s 557(3) would increase the occasions on which the person would be disqualified from the benefit of s 557(1). Any prior breach of s 417 penalised by the court would bring that about. Although the person might lose the benefit of the statutory deeming under s 557(1), the benefit of the common law course of conduct principle in terms of penalty would potentially remain available.

68    On Ross J's reasoning, s 557(3) would only apply in narrow circumstances to disqualify the person from the benefit of s 557(1). Section 557(1) would remain generally available.

69    I do not consider Jessup J's reasoning in Kane Constructions to be clearly wrong, and I would follow it, particularly in circumstances where his Honour was dealing with the same alleged contravention. That is, a contravention of s 417.

70    In coming to this view I have taken into account a number of matters (some of which overlap).

71    First, as a matter of construction, there are textual differences between the civil remedy provisions considered in Rocky Holdings and s 417.

72    As Jessup J identified, s 417 itself creates the proscription. It is not necessary to go to any other provision to ascertain the substance of the proscription. It proscribes organising or engaging in industrial action during the term of an enterprise agreement or workplace determination. It is clearly aimed at limiting industrial action where such an agreement is in place. It is not necessary to have regard to the content or particular terms of any agreement or determination: it is enough that it be in-term.

73    In contrast, the content of the prohibition set out by s 45 (for example) is dictated by the content of the term of the enterprise agreement: a contravention of a different term means a contravention of a different statutory prohibition.

74    The prohibition under s 417(1) is not defined in that way. Rather, regardless of the enterprise agreement involved, the prohibition is the same: engaging in industrial action after an enterprise agreement is approved but before its nominal expiry date has passed. Notwithstanding that the existence of an agreement or determination is involved, it does not define the prohibition. Further, the prohibition applies regardless of whether the industrial action relates to a matter dealt with in the agreement or determination.

75    Second, the core principle to be taken from Rocky Holdings is that when establishing the number of breaches of a penalty provision for the purposes of s 557(1), the court must look to the content of the specific provision, not the mere existence of the provision, because s 557(2) operates as a form of a definitions provision. The Court accepted (at [13]) the respondent's submission to the effect that (for example) in relation to a contravention of s 45 the Court in effect substitutes in s 557(1) the words 'a term of a modern award' for 'a civil remedy provision' under s 557(1), so that it reads:

… 2 or more contraventions of (a term of an award) are, subject to subsection 3, taken to constitute a single contravention …

(original emphasis)

The effect is therefore that when multiple terms were contravened, each contravention of a term constituted a separate contravention of s 45.

76    To apply the approach set out in Rocky Holdings in the context of s 417, s 557(3) would read:

(3)    Subsection (1) does not apply to (the organisation or engagement in industrial action within the s 417 time period) that is committed by a person after a court has imposed a pecuniary penalty on the person for an earlier (organisation or engagement in industrial action within the s 417 time period).

77    In other words, even applying that substitution approach, in the case of s 417 there is no apparent reason to limit the reference to the earlier contravention to one involving the same agreement.

78    Third, Ross J said that in times past industrial action was not the subject of a discrete civil remedy provision, but was dealt with by provisions within the relevant award. Presumably this is a reference to provisions in for example, the Industrial Relations Act 1988 (Cth) that permitted inclusion of a bans clause in an award, empowered a party to approach the Commission relating to a breach of a bans clause and provided for the imposition and recovery of penalties for, relevantly, a breach of a bans clause. His Honour assumed that by reference to the pre-existing regime, the inclusion of s 417 as a civil remedy provision under s 557(2) was to be considered a change of form rather than substance, so that in substance there should still be regard to the underlying agreement or determination in order to ascertain whether there was a contravention.

79    It is not clear why that result would follow, where legislative changes have reorganised the law relating to penalties and civil remedy provisions. In particular, regardless of the prior regime, the introduction of a provision in the terms of s 417 had the effect that industrial action is prohibited during a designated time period, being before the nominal expiry date of the agreement has passed.

80    Fourth, it is apparent that the prohibition on industrial action under s 417 is intended to be broad: it is not necessary that the industrial action relate to a matter dealt with in the relevant agreement or determination for a breach to occur. It is the fact of industrial action during the term that is central.

81    Fifth, the construction I prefer has the benefit that it does not require the importing or adding of any words to s 417 or s 557(3). It is a construction that is available on the plain reading of the provisions.

82    Sixth, one of the matters that persuaded Ross J that the primary judge's narrow construction was wrong was that s 557(3) had as its purpose the balancing of competing public interests (at [50]). However, having rejected the primary judge's construction, noting that such construction would confine its operation and so expand the circumstances where leniency might be afforded under s 557(3), his Honour's view that s 557(3) operates only where the contravention relates to the same agreement or determination would also confine its operation and so affect the balance of competing public interests. It is not clear to what extent his Honour took that effect into account.

83    Seventh, I also agree with Jessup J in Kane Constructions that the reasoning in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (No 2) [2010] FCA 652 (referred to in Rocky Holdings) is distinguishable. In QR Limited, Logan J was concerned with an obligation that read:

Item 2(2)    A person must not contravene a term of an agreement based-transitional instrument that applies to the person.

84    It can be seen that the drafting of this prohibition is analogous to that in s 45 (the subject of Rocky Holdings), rather than s 417. In order to ascertain the contravention under Item 2(2), it is necessary to look to the term in the instrument said to be contravened.

85    A factor that influenced Logan J's decision was the generality of Item 2(2): his Honour noted that it was a provision which was applicable to different terms in different instruments that might embrace quite different forms of conduct. His Honour therefore considered it odd to construe s 557 in those circumstances in a manner which would result in breaches of different terms being treated as but one contravention (at [16]-[18]). However, s 417 is clear as to what is proscribed: industrial action, regardless of whether it relates to a matter dealt with in the relevant agreement.

86    Eighth, I note that there are examples where the Court has assumed that s 557(3) is engaged where the previous penalty relates to an earlier contravention of s 417, without descending into an examination of whether the contravention relates to the same underlying agreement. In Australian Building and Construction Commissioner v Pauls [2017] FCA 843 Rangiah J said the following:

[20]    Under s 557(1) and (3) of the FWA, two or more contraventions of s 417(1) are taken to constitute a single contravention if the contraventions arose out of a course of conduct by the person, provided that a Court has not previously imposed a pecuniary penalty on the person for an earlier contravention of that provision.

[21]    The Commissioner does not allege that Pauls or Steele have previously contravened s 417 of the FWA, so s 557(1) is capable of applying to their conduct. The Commissioner's written submissions assert that Bland has had 'previous involvement in similar proceedings', but do not allege that any pecuniary penalty has previously been imposed upon him for contravention of s 417. I therefore accept that s 557(1) is capable of applying to Bland's contravention of s 417. Pecuniary penalties have been imposed upon the CFMEU for contravention of s 417 on a number of previous occasions, so s 557(1) does not apply to its conduct.

(emphasis added)

87    I acknowledge the point may not have been the subject of argument in that case, but Rangiah J's conclusion supports the view that on a plain reading of the text, it is by no means obvious that any limitation is implicit.

88    Finally, I have had regard to the CFMMEU's submission that s 557 is intended to be a beneficial provision and so should be construed in a manner that expands, rather than limits, the occasions on which a person may be accorded the opportunity to rely on the deeming provision in s 557(1). There is no doubt that the course of conduct principle, reflected in a revised form in s 557, has the beneficial purpose of preventing double punishment for conduct that largely arises out of the same circumstances. However, as confirmed in Hutchison Ports Appeal, the benefit of the common law principle is also preserved. The construction that I have preferred does not ignore that purpose of avoiding double punishment, but rather has regard to the text of the provision as well as context. It permits the statutory protection to be invoked, albeit in circumstances that may be limited depending upon the relevant civil remedy provision in play, but also preserves the benefit of the common law principle.

89    Taking into account those matters, I would follow the reasoning of Jessup J in Kane Constructions.

Determination of penalty

Maximum penalties and course of conduct

90    Section 546 of the FW Act expressly provides for the court to order a person to pay a pecuniary penalty within a prescribed maximum that the court considers 'is appropriate' if the court is satisfied that the person has contravened a civil remedy provision.

91    The maximum penalties available for a contravention of s 417 of the FW Act at the relevant time are:

(a)    for a body corporate, $33,000 (300 penalty units); and

(b)    for an individual, $6,600 (60 penalty units).

92    The CFMMEU is a body corporate by operation of s 27 of the FW Act.

93    Although the value of penalty units has increased since June 2012, the applicable maximum penalty must be based on the penalty unit value applicable at that time: Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 at [391]-[395].

94    The correct approach to punishing an offender under the course of conduct principle was described by Rangiah J in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 59 as follows (Allsop CJ to similar effect at [10]-[12], Griffiths J agreeing):

[132]    The course of conduct principle exists to ensure that where that conduct results in more than one contravention, an offender is not punished more than once for what is effectively the same offending conduct. A finding that multiple contraventions are connected by a single course of conduct raises a question as to what is the appropriate penalty for those contraventions that avoids double punishment, but does not answer that question. The question is answered by evaluating the conduct and its course and assessing what penalty is, or what penalties are, appropriate for the contraventions. It was an error for the primary judge to take the approach that only a single penalty up to the statutory maximum for one contravention was available for multiple contraventions arising within a single course of conduct.

95    To similar effect see Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181 at [141] (Jagot, Yates and Bromwich JJ).

Matters relevant to assessment of penalty

96    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: Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC8; (2008) 165 FCR 560 at [91] (Buchanan J).

97    Factors that might be relevant to the exercise of the court's discretion in assessing what penalty should be imposed are well known and set out elsewhere: see Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213 at [11]-[23] (Tracey J) and the cases cited therein.

98    The topics addressed below are those that the parties identified as of particular relevance in this case. In the end, however, it is necessary to have general regard to all of the circumstances in order to reach a penalty which balances many conflicting features.

Nature and circumstances of the conduct

99    As a result of the conduct, operational work was not carried out for two eight hour shifts. The conduct was deliberate and the safety issues were a pre-text. Safety is a matter of primary importance and raising spurious safety claims has the potential to undermine confidence in the reporting of safety issues.

100    However, I take into account the CFMMEU's submission that the stoppages involved little more than the withdrawal of labour. No violence or physical threats were involved.

Loss and damage

101    It is accepted that the conduct caused Chevron loss and damage. The parties have agreed an amount of compensation, but have agreed that payment be deferred pending any further contravention. This is addressed further below.

Similar previous conduct

102    In Hutchison Ports First Penalty, Jagot J addressed the effect of the amalgamation of the MUA and the CFMMEU (findings not challenged on appeal):

[9]    … s 79(b) creates a statutory fiction under which the proceeding is to continue, the fiction being that the amalgamated organisation, the CFMMEU, is and always has been the deregistered organisation, the MUA. It follows that it is the MUA alone, under this statutory fiction, which is to be the subject of any specific deterrence consideration. General deterrence, however, involves different considerations because its purpose is not to deter the contravener but all those who may contravene the statute, which necessarily includes organisations of the same kind as the CFMMEU. As such, I have given weight in the determination of penalty to specific deterrence of the respondent 'as if it were, and had always been' the MUA and general deterrence of all participants in the industrial relations system, including organisations of the same kind as the CFMMEU.

103    The parties agree that the only prior contraventions of the CFMMEU before the amalgamation date potentially relevant to specific deterrence in this case are those of the MUA.

104    There are seven prior contraventions in relation to the deregistered MUA. Only two were determined prior to the conduct the subject of this matter:

(1)    Broome Airport; and

(2)    Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1521: 24 hour strike at DP World site by 113 employees due to threat of redundancies (included contravention of s 494(1) of the Workplace Relations Act 1996 (Cth)).

105    The CFMMEU listed the other five matters in its submissions:

(1)    the first related to three four-hour stoppages by stevedores at Port Botany following a decision to terminate the employment of an injured stevedore: DP World Sydney Limited v Maritime Union of Australia (No 2) [2014] FCA 596 (included a finding of contravention of s 417 of FW Act);

(2)    the second related to the proposed employment of two individuals by a contractor, and the MUA's conduct in denying them membership, and advising, encouraging or inciting the contractor not to employ them: Fair Work Ombudsman v Skilled Offshore (Australia) Pty Ltd [2015] FCA 275;

(3)    the third concerned conduct in Western Australia by the local branch and its officials which comprised adverse action against five employees by the distribution of posters within the Fremantle Port Authority premises at Fremantle and Kwinana that named and denounced the employees as 'scabs': Fair Work Ombudsman v Maritime Union of Australia (No 2) [2015] FCA 814;

(4)    the fourth concerned seamen at Port Hedland who stopped work for approximately four hours before the nominal expiry date of an agreement, and the MUA admitted it organised and was knowingly concerned in the stoppage: BHP Billiton Minerals Pty Ltd v Maritime Union of Australia [2014] FCA 1357 (included a finding of contravention of s 417); and

(5)    the fifth is the conduct the subject of the Hutchison Ports cases referred to in these reasons (included contraventions of s 417).

106    In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining, and Energy Union (Syme Library Case) (No 2) [2019] FCA 1555 Wheelahan J summarised the relevant authorities and stated the approach to prior contraventions as follows:

[96]    … 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.

107    Whilst the CFMMEU urged that I have regard to only the contraventions that were determined by the Court prior to the conduct the subject of this matter (June 2012), the authorities do not support that approach. In Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548 (overturned on a different point in Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171), Jessup J considered the authorities (at [26]-[29]) and accepted a submission that the effect of prior offences was 'more cogent' if they had been the subject of a conviction before the commission of the immediate offence, and that the existence of a prior conviction 'adds a significant dimension'. It is clear that I may have regard to the fact that there were contraventions both before and after the conduct the subject of this penalty determination, although the penalty must remain proportionate.

108    I accept, as the CFMMEU submits, that the facts relating to many of those offences are different. The offences do not indicate a practice of reliance on spurious safety claims to purportedly justify delay or work stoppages. They do, however, indicate that the MUA has on a number of occasions over the course of the last 10 years proceeded with unlawful industrial action in the face of in-term agreements, an approach on its part that tends to undermine the veracity of the enterprise agreement process.

Size and status of CFMMEU

109    Chevron submitted that the CFMMEU (including the MUA division) is a large, asset rich and well-resourced registered organisation. That does not seem to be in issue. From a penalty perspective, that has some relevance including that the MUA was in a position to be properly informed of its legal obligations and options. Further, its registration under the Fair Work (Registered Organisations) Act carries with it associated benefits and responsibilities. Ordinarily, trade unions are able to achieve results by acting within, and respecting, the law that regulates the conduct of all participants involved in the employer-employee relationship: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53; (2017) 249 FCR 458 at [98] (Dowsett and Rares JJ).

Involvement of senior management

110    The CFMMEU accepts that senior union officials Padraig Crumlin (National Secretary of the MUA) and Michael Doleman (Deputy National Secretary of the MUA) were aware of and consented to the conduct of the MUA.

Contrition and cooperation

111    Chevron asserts that the MUA has not demonstrated contrition and points to the fact that the litigation was hotly contested between the parties over many years. Concessions as to liability came only shortly before the liability hearing, and agreement as to the proposed terms of penalty came only after a lengthy process that included the exchange of expert evidence, and only shortly before the penalty hearing. Chevron contends that the concessions came late and only by way of pragmatism on the CFMMEU's part, when faced with the pending hearings.

112    I accept there was cooperation on the part of the CFMMEU by way of agreement of a statement of agreed facts and the ultimate concessions as to liability and proposed penalty. The importance of concessions should not be underestimated. They promote certainty of results for the parties as well as a reduction in the costs of final hearings and in the use of court resources. I take into account that the concessions came late in this case, but they were still of value and I give them some weight by way of mitigation.

113    Lack of contrition is not an aggravating circumstance, although an apology may serve to reduce a penalty that might otherwise be imposed: BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining & Energy Union [2001] FCA 336 (Kiefel J):

[10]    … Whilst the lack of an apology is not an aggravating circumstance, such as might increase the penalty, the making of an apology can operate to reduce a penalty, at least where it can be seen to render it unlikely that the conduct will be repeated in the future.

114    There is an absence of conduct on the part of the CFMMEU that might be described as apologetic.

Specific and general deterrence

115    It is apparent that substantial weight must be given to the need for specific and general deterrence in this case. I was told that the senior MUA members involved in the conduct of June 2012 remain involved in the CFMMEU and are officials in the MUA branch of the CFMMEU. There has been an ongoing history of contraventions of s 417 by the MUA, as already set out. Whilst I do not doubt that the MUA considered in this case that it had a genuine grievance as to the use of foreign labour, the use of industrial action was unlawful and cannot be justified. There is also a need for general deterrence of other industrial organisations, including the CFMMEU.

Determination of amount

116    Of particular importance in this matter is the cynical nature of the industrial action embarked upon. It was deliberate, involved some planning and was aimed at causing interruption to Chevron. So much is readily apparent from the exchanges of emails reported in the liability reasons at [38], [43], [55]-[56], [77]-[78] and [104]. The conduct was highly improper. I do not accept the CFMMEU's submission that any penalty should be mid-range. However, I accept that although the wrongdoing was at a high level of gravity, it is not at the highest level, having regard to the relatively confined time period of the action and that the action was largely peaceful. Considering all of the circumstances, and the fact that the contraventions arose in the same course of conduct, I consider that the appropriate penalty is a single fine of $30,000.

117    I consider the position to be analogous to that in Hutchison Ports Second Penalty. Having regard to the facts of this case (see [57]-[59] above), regardless of whether s 557(1) was engaged, two separate penalties for the contraventions would involve punishing the CFMMEU twice for the same criminality.

118    To my mind, the figure of $30,000 avoids double punishment whilst sending a message that the conduct was serious and that threats involving spurious safety claims are not to be tolerated or repeated.

Payment to Chevron

119    The parties agreed that the penalty should be paid to Chevron. The FW Act enables a person affected by a contravention to initiate an enforcement proceeding and to receive the penalty, where one is imposed: Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4; (2016) 239 FCR 336 at [102]-[118]. Such an order is appropriate in this case.

Compensation order

120    Section 545(1) of the FW Act affords a broad discretion to the Court to grant an 'appropriate' remedy which meets the circumstances of the contravention of a civil remedy provision under the FW Act. Section 545(2) provides relevantly that the Court can make orders including an order granting an injunction and an order awarding compensation for loss that a person has suffered because of the contravention.

121    A necessary condition for the making of an order for compensation is that loss has been suffered. The CFMMEU has consented to the compensation order and the Court is entitled to treat its consent as involving an admission that loss was suffered: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150 at 164 (Gibbs CJ, Stephen, Mason and Wilson JJ). Furthermore, Chevron provided detailed particulars of loss and damage, its case for damages being based on delay and disruption caused to the Gorgon Project. The amount claimed has not been formally tested but Chevron provided both lay and expert evidence in support of its claim, which was the subject of conferral between Chevron and the CFMMEU. The CFMMEU contested the original figure and provided expert evidence to Chevron. I was told that the experts met and prepared a joint report, although little was agreed between them.

122    Ultimately the parties came to an agreement as to an amount that the CFMMEU was willing to pay by way of compensation and that Chevron was willing to accept, and I take into account that both parties are sophisticated and legally represented.

123    I also take into account that it can readily be accepted that delay and disruption to the delivery of critical freight had an effect on Chevron's critical path and contractual obligations, causing loss.

124    In those circumstances I consider it appropriate to order that compensation be paid in the amount agreed by the parties and on the terms agreed by the parties. The terms link its payment to the injunctive relief, and it is therefore not appropriate that one order be made without the other.

Injunction

125    The parties have agreed to an order that the payment of compensation is suspended pending any further contravention of the FW Act by representatives of the MUA division and the CFMMEU by way of organising or being involved in industrial action in or in connection with any Chevron project within a period of ten years of the proposed orders (the classes of relevant persons involved in the MUA division and CFMMEU and other terms are defined more specifically in the orders). Counsel for Chevron confirmed that the payment is to be a one-off payment on the first occasion of a contravention falling with the terms of the orders.

126    The Court has the power to grant an injunction to prevent, stop or remedy the effects of a contravention: s 545(2)(b). There are examples where an injunction in terms that extend to benefit other projects of a party or its related entities have been made: for example, Woodside Burrup Pty Ltd v Construction, Forestry, Mining & Energy Union [2011] FCA 949; (2011) 220 FCR 551.

127    I consider it is appropriate to make the orders as consented to by the parties in this case for the following reasons:

(1)    the injunction, linked as it is to the compensation payment, is likely to act as a significant deterrent to the MUA and CFMMEU from repeating similar conduct;

(2)    an order of this kind is in the public interest: it is consistent with the objects of the FW Act as enunciated in s 3 of the FW Act, and it may assist in ensuring industrial peace on major and important resources projects over many years; and

(3)    the terms of the injunction have been carefully drafted by the parties and are sufficiently clear in their terms.

Orders

128    Accordingly, I will make orders that reflect the imposition of a pecuniary penalty of $30,000 and otherwise reflect the terms as to compensation and injunctive relief as consented to by the parties.

Associate:

Dated:    9 April 2020