FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Hassett [2020] FCA 498

File number(s):

TAD 17 of 2019

Judge(s):

O'CALLAGHAN J

Date of judgment:

21 April 2020

Catchwords:

INDUSTRIAL LAW – penalties – contraventions of s 494(1) of the Fair Work Act 2009 (Cth) – quantification of penalties for admitted breaches – personal payment order

Legislation:

Crimes Act 1914 (Cth) s 4AA

Fair Work Act 2009 (Cth) ss 484, 494(1), 500, 512, 539(2), 546(2), 550, 793

Fair Work (Registered Organisations) Act 2009 (Cth) Ch 8 Pt 3

Work Health and Safety Act 2012 (Tas)

Cases cited:

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Brooker Highway Case) (No 2) [2018] FCA 1214; (2018) 280 IR 356

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Parliament Square Case) (No 2) [2018] FCA 1201

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

Australian Building and Construction Commissioner v Hassett [2019] FCA 855

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) (2018) 264 FCR 155

Date of hearing:

2 March 2020

Registry:

Tasmania

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

56

Counsel for the Applicant:

Mr LR Howard

Counsel for the Respondents:

Mr P Boncardo

ORDERS

TAD 17 of 2019

BETWEEN:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER

Applicant

AND:

RICHARD XAVIER HASSETT

First Respondent

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

Second Respondent

JUDGE:

O'CALLAGHAN J

DATE OF ORDER:

21 April 2020


PENAL NOTICE

TO:    THE CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION AND RICHARD XAVIER HASSETT

IF YOU (BEING THE PERSON BOUND BY THIS ORDER):

(A)    REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B)    DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.


THE COURT DECLARES THAT:

1.    The first respondent contravened section 494(1) of the Fair Work Act 2009 (Cth) (FW Act) on 16 January 2019 at the Cattle Hill Wind Farm on Macclesfield Road, Lake Echo, Tasmania by exercising a State OHS right without an entry permit issued by the Fair Work Commission pursuant to section 512 of the FW Act.

2.    By reason of sections 550 and 793 of the FW Act, the second respondent contravened section 494(1) of the FW Act by the conduct of the first respondent constituting the contravention the subject of the first declaration.

THE COURT ORDERS THAT:

3.    The first respondent pay to the Commonwealth of Australia a penalty of $10,000 in respect of his contravention of section 494(1) on 16 January 2019.

4.    The second respondent pay to the Commonwealth of Australia a penalty of $50,000 in respect of its contravention of section 494(1) on 16 January 2019.

5.    The pecuniary penalty referred to in order 3 above be paid to the Commonwealth of Australia within 90 days of these orders being made by the Court.

6.    The pecuniary penalty referred to in order 4 above be paid to the Commonwealth of Australia within 28 days of these orders being made by the Court.

7.    The first respondent pay the penalty referred to in order 3 above personally in that he not, whether before or after payment of the penalty:

(a)    seek to have or encourage the second respondent in any way whatsoever, directly or indirectly, to pay to him or for his financial benefit in any way whatsoever, any money or financial benefit referable to the payment of the penalty, whether in whole or in part; or

(b)    accept or receive from the second respondent in any way whatsoever, any money or financial benefit referable to the payment of the penalty, whether in whole or in part.

8.    There be no order as to costs.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

introduction

1    By an originating application dated 10 April 2019 and an amended statement of claim dated 22 January 2020, the applicant (Commissioner) seeks declarations of contravention of s 494(1) of the Fair Work Act 2009 (Cth) (FW Act) by the respondents, Mr Hassett and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) (collectively, respondents), and the imposition of pecuniary penalties. The Commissioner also seeks the making of a personal payment order in relation to Mr Hassett.

2    By their amended defence dated 29 January 2020, the respondents admit all the relevant material facts necessary to establish the alleged contraventions.

3    The respondents agree that the declarations sought by the Commissioner should be made. It is also agreed that there should be no order as to costs.

4    The parties are at odds about what the appropriate penalties should be, and whether a personal payment order should be made against Mr Hassett.

The facts

5    Sub-section 494(1) of the FW Act provides that: “An official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder.

6    Mr Hassett and the CFMMEU admit the pleaded contraventions of that provision, as follows.

7    On the morning of 16 January 2019, at or around 9:20 am, Mr Hassett (together with another CFMMEU official and an official from another union) arrived at the Cattle Hill Wind Farm construction site, located at Macclesfield Road, Lake Echo, Tasmania (Site). The project taking place there involved the construction of 28 wind turbine generators and associated infrastructure.

8    Upon his arrival and after some exchanges, Mr Hassett co-signed an entry notice under the Work Health and Safety Act 2012 (Tas) (WHS Act). Mr Hassett then entered the Site and walked along a haul road, before returning to the Site office. His entry was an exercise of a “State or Territory OHS right” for the purposes of s 494(1) of the FW Act.

9    Mr Hassett did not hold an entry permit issued to him pursuant to s 512 of the FW Act. He was therefore not a “permit holder” for the purposes of s 494(1).

10    Mr Hassett was aware that he was not a permit holder under the FW Act and that he was exercising a State or Territory OHS right on his entry.

11    Mr Hassett’s conduct and his state of mind were, for the purposes of s 793 of the FW Act, the conduct and state of mind of the CFMMEU. The CFMMEU was therefore involved in Mr Hassett’s contravention and is thus, pursuant to s 550 of the FW Act, taken itself to have contravened s 494(1) of the FW Act.

Maximum penalties

12    In fixing penalties, it is necessary to have regard to the maximum penalty amount. The maximum penalty for each contravention here is 60 penalty units for Mr Hassett and 300 penalty units for the CFMMEU: FW Act ss 539(2), 546(2).

13    A “penalty unit” is defined in s 4AA of the Crimes Act 1914 (Cth). At the time that the contravening conduct occurred, the value of a penalty unit was $210. Accordingly, the maximum penalty that may be imposed on Mr Hassett is $12,600. The maximum penalty that may be imposed on the CFMMEU is $63,000.

Relevant principles

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

Of particular significance is the recognition that deterrence (general and specific) is the principal and indeed only object of the imposition of a penalty — to put a price on contravention that is sufficiently high to deter repetition by the contravener and others who might be tempted to contravene the Act … Retribution, denunciation and rehabilitation have no part to play.

Relevant factors in the overall assessment of penalty … can be restated as follows: the nature, character and seriousness of the conduct; the loss and damage caused; the circumstances in which the conduct took place; the size of the contravener and its degree of power; the deliberateness of the conduct and the time over which it occurred; the degree of involvement of senior officials or management; the culture of the organisation as to compliance or contravention; and, any co-operation with the regulator and contrition.

The seriousness of the contravention and other features of the conduct which may be seen as relevant to it … find their place in understanding the degree of deterrence that is necessary to be reflected in the size of the penalty …

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

the commissioner’s submissions

15    The Commissioner submits that a contravention of s 494(1) is binary: the official either holds a permit on entry or does not”. He says that Mr Hassett’s admitted contravention of s 494(1) ought to be seen in the “paradigm” of a provision that “does not establish an offence that admits gradients or magnitudes of offending” and that because Mr Hassett has failed in his very first duty to hold a permit, an obligation that predicates the entire right of entry regime, his contravention cannot be described as anything but serious”.

16    The Commissioner submits that Mr Hassett is a recidivist offender, having contravened right of entry provisions under the FW Act on eight separate occasions, in circumstances “marked by their frequency, consistency and brazenness”. Those occasions may be summarised as follows.

17    On 28 July 2015 in Hobart, Mr Hassett contravened s 500 of the FW Act by acting in an improper manner by (a) failing to provide notice of his entry, (b) failing to enter on a day specified in such a notice, (c) holding discussions with workers outside of mealtimes or other break times, and (d) using foul language, while exercising a right of entry under s 484 of the FW Act. A penalty of $5,000 was imposed: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Parliament Square Case) (No 2) [2018] FCA 1201 (The Parliament Square Case (No 2)).

18    On 21 October 2015 in Hobart, Mr Hassett contravened s 500 of the FW Act by acting in an improper manner by (a) failing to provide notice of his entry, (b) failing to enter on a day specified in such a notice, (c) holding discussions with workers outside of mealtimes or other break times, and (d) dismissively ignoring advice from site management that he should not be on the site, while exercising a right of entry under s 484 of the FW Act. A penalty of $5,500 was imposed: The Parliament Square Case (No 2) [2018] FCA 1201.

19    On 5 November 2015 in Hobart, Mr Hassett contravened s 500 of the FW Act by acting in an improper manner by (a) failing to provide notice of his entry, (b) failing to produce an entry notice when asked to do so by site management, (c) refusing to leave the site when requested, and (d) using offensive language, while exercising a right of entry under s 484 of the FW Act. A penalty of $6,000 was imposed: The Parliament Square Case (No 2) [2018] FCA 1201.

20    On 5 November 2015 in Hobart, Mr Hassett contravened s 500 of the FW Act by acting in an improper manner by directing unnecessary and gratuitous abuse to site management while exercising a State OHS right of entry under s 494(2) of the FW Act. A penalty of $1,500 was imposed: The Parliament Square Case (No 2) [2018] FCA 1201.

21    On 12 October 2016 near Hobart, Mr Hassett contravened s 500 of the FW Act by acting in an improper manner while exercising rights as a permit holder under s 484 of the FW Act by (a) failing to give notice of his attendance, (b) remaining on site after being directed to leave, and (c) aggressively and repeatedly using foul and abusive language. A penalty of $7,500 was imposed: Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Brooker Highway Case) (No 2) [2018] FCA 1214; (2018) 280 IR 356.

22    On 5 June 2017 in Devonport, Mr Hassett contravened s 499 of the FW Act by failing to comply with a reasonable request to comply with an occupational health and safety requirement that applied to a construction site: Australian Building and Construction Commissioner v Hassett [2019] FCA 855.

23    On 5 June 2017 in Devonport, Mr Hassett contravened s 500 of the FW Act by acting in an improper manner while exercising, or seeking to exercise, his entry rights under the FW Act by (a) climbing on a crane while it was in operation, (b) ignoring requests to get off the crane, and (c) using insulting language and engaging in abusive behaviour. A penalty of $8,000 was imposed: Australian Building and Construction Commissioner v Hassett [2019] FCA 885.

24    On 6 June 2017 in Devonport, Mr Hassett contravened s 500 of the FW Act by acting in an improper manner while exercising, or seeking to exercise, his entry rights under the FW Act by climbing on a crane while it was in operation and causing work to stop. A penalty of $6,000 was imposed: Australian Building and Construction Commissioner v Hassett [2019] FCA 885.

25    The Commissioner also submits that there can be no doubt that Mr Hassett knew when he entered the Site on 16 January 2019 that he had no legal entitlement to do so, and did so in blatant contravention of the law, because Mr Hassett had only the month before instructed the CFMMEU to return his entry permit to the Fair Work Commission. (To establish this, the Commissioner relied upon correspondence between Ms Reid, a Legal Officer of the CFMMEU, and the Fair Work Commission. This correspondence arose out of a proceeding instigated in the Commission in 2018, in which the Commissioner sought to have Mr Hassett’s entry permit suspended or revoked. Rather than contesting the matter, Mr Hassett instructed Ms Reid to return his permit to the Commission, which she did by post on 11 December 2018, a little more than one month before the instant contraventions.)

26    As to the CFMMEU, the Commissioner adduced evidence that the Victoria-Tasmania Divisional Branch of the Construction and General Division reported revenue of $35,010,230 and a net surplus of $2,768,769 for the year ending 31 March 2019; and net assets of $71,562,816 (including $21,827,197 of cash and cash equivalents) as at 31 March 2019. Needless to say, the Commissioner again repeated the sorry saga of the union’s prior offending.

27    On the issue of deterrence, the Commissioner submitted that “[s]pecific deterrence looms large when it comes to penalising Mr Hassett”: (a) because of his previous contraventions of his right of entry obligations under the FW Act, summarised at [17]-[24] above, which he says “[o]n any view … indicat[e] he has next to little or no regard for the right of entry obligations”; and (b) because he remains an employed official of the CFMMEU and thus has an ongoing opportunity to contravene the FW Act

28    The Commissioner also submits that because Mr Hassett is an elected official of the CFMMEU “the need for general deterrence is also high. The penalty to be imposed … must not only sufficiently deter Mr Hassett, but others who may be tempted to engage in the same unlawful conduct”.

29    As for the CFMMEUs contravention, the Commissioner submits that it is clear that the union “treats the imposition of penalties as the cost of doing ‘business’”, and that the court’s repeated criticism of its “deplorable history of offending and its general approach to unlawful behaviour has not altered that approach”.

the submissions of mr hassett and the cfmmeu

30    The respondents submit that the contraventions “were at the bottom of the spectrum of seriousness for contraventions of s 494(1), and that the penalties to be imposed should be determined accordingly. Mr Hassett also says that the court should not impose a personal payment order on him.

31    The respondents submit that the Commissioner’s submission that all contraventions of s 494(1) of the FW Act are serious because s 494(1) does not admit of “gradation or magnitudes of offending” is erroneous and that “[c]ontraventions of s 494(1) may be of a variety of objective seriousness”. They submit that more serious contraventions might include confrontational, obnoxious, improper or intrusive conduct by a union official; attempts to enter a site under the pretence of having concerns about health and safety; and conduct which imperils the safety or wellbeing of persons present at the premises.

32    The respondents submit that the following matters are relevant to assessing the objective seriousness of the contravening conduct in this case and demonstrate that the conduct cannot be characterised as warranting a penal response at the maximum or towards the very high end of the range, as the Commissioner contends:

(1)    The contraventions did not affect, cease or interrupt the activities, functions or business of the occupier of the Site, Goldwind Australia Pty Ltd (Goldwind), or the work being conducted at the Site. Mr Hassett simply entered the Site, walked along a haul road, and returned to the Site office.

(2)    Goldwind did not suffer any loss or damage as a result of the contraventions.

(3)    The contravening conduct was isolated … occurred on a single day and was not repeated. It was not systematic or part of some wider and coordinated campaign”.

(4)    It is an agreed fact that, prior to entering the Site, Mr Hassett reasonably suspected that one or more contraventions of the WHS Act was or were occurring.

(5)    Mr Hassett was not bad mannered, confrontational or antagonistic, nor did he behave in an improper manner.

(6)    The respondents derived no profit or benefit from the contravening conduct.

33    The respondents also submit that Mr Hassett is not “a senior official with actual managerial control or power” because although he is the State Assistant Secretary of the Tasmania Branch of the CFMMEU, the evidence shows it has no property or members of its own, and has been granted a s 271 certificate by the Registered Organisation Commission exempting it from the financial reporting requirements of Part 3 of Chapter 8 of the Fair Work (Registered Organisations) Act 2009 (Cth).

34    In addition, the respondents rely on certain “rehabilitative and corrective action”. The evidence established that on 6 February 2020, the Secretary of the Victoria-Tasmania Branch of the Construction and General Division of the CFMMEU, Mr John Setka, engaged the professional services of Mr Brian Lacy AO, barrister and former Senior Deputy President of the Australian Industrial Relations Commission, to provide training to CFMMEU organisers and shop stewards, including Mr Hassett, as well as the Branch Executive, for the purpose of ensuring that “CFMMEU organisers understand and have a good knowledge of their responsibilities and obligations under industrial and work health and safety laws”.

35    Mr Lacy was also engaged to provide, and did provide, training to Mr Hassett about his responsibilities and obligations under workplace laws, particularly in respect to right of entry, in order “to ensure that Mr Hassett understands and has a good knowledge of his responsibilities and obligations under applicable industrial and relevant work health and safety laws concerning entry to premises”.

36    The respondents’ written submission correctly summarised Mr Lacy’s evidence about his training of Mr Hassett as follows:

[The training] focused on, amongst other things, the WHS Act, including in particular Part 7, Workplace entry by WHS permit holders. Mr Lacy also provided specific instruction and detail to Mr Hassett relating to each of his prior contraventions as well as the contravention admitted in this proceeding, including: why his behaviour contravened relevant right of entry provisions (including, for present purposes, because Mr Hassett was [no] longer the holder of a permit issued under s 512 of the FW Act); the analysis of the Court in determining penalty; and what steps he needs to take in future to ensure that such contraventions do not recur. Following the training, Mr Lacy was satisfied that Mr Hassett knows and understands these matters, and knows and understands that to exercise a WHS right of entry without a FW permit is a contravention of s 494 of the FW Act.

Further, Mr Lacy says that Mr Hassett demonstrated a positive attitude and engagement in the training.

37    The respondents rely on this evidence in support of the submission that recent rehabilitative and corrective actions are proactive steps taken by executive officers of the CFMMEU to improve compliance”, and this is a factor in its favour when fixing a pecuniary penalty (citing Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 at 90 [104] (Dowsett, Greenwood and Wigney JJ)).

38    As to deterrence, Mr Hassett submits:

In assessing the weight to be accorded specific deterrence, the Court must take into account … that [he] has received training, arranged by senior officers of the CFMMEU, to ensure future compliance in respect of right of entry. Mr Lacy reports that in that training [he] ‘demonstrated a good knowledge and understanding of his errant ways and it was my impression that he is committed to complying with his obligations and responsibilities under the WHS Act and the FW Act’

Further, the arranging of comprehensive training on compliance with the FW Act and associated industrial legislation is apt to send a clear signal to CFMMEU officials regarding conduct in contravention of the FW Act. The training arranged for [him] and other officials (including senior officials) also undercuts the submission of the ABCC that the need for general deterrence in relation to [him] is high because unlawful behaviour is condoned at the highest levels of the CFMMEU’s management.

Further … [he] is not, in practical terms, a ‘senior’ official of the CFMMEU. The ABCC’s submission that he is an appropriate vehicle for general deterrence for this reason is misplaced.

39    As to deterrence, the CFMMEU submits:

In respect of the CFMMEU and the need for specific deterrence, the ABCC relies on the CFMMEU’s record to conclude that ‘the CFMMEU simply does not care about the law’. For the reasons given below, this conclusion cannot be sustained. Senior officials of the CFMMEU have taken action ‘to ensure that CFMMEU organisers understand and have a good knowledge of their responsibilities and obligations under industrial and work health and safety laws’ and that ‘individuals have the requisite knowledge to enable compliance with their responsibilities and obligations’.

40    The respondents also rely on their admissions as operating to mitigate the penalties that would otherwise be imposed on them (citing Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 at 102 [163] (Dowsett, Greenwood and Wigney JJ)).

personal payment order

41    Mr Hassett submits that “the implied power to make a personal payment order should be exercised with caution and only in circumstances where it is required by the circumstances of the contravening conduct and contravener to accomplish the deterrent effect of the penalty. The objective seriousness of the contravening conduct, including whether it is isolated in nature, is a relevant matter in determining whether to make a personal payment order”.

42    Mr Hassett submits that “the objective seriousness of the contravening conduct in the present matter falls towards the lower of the scale” and “is not so egregious as to call for the unusual step of the imposition of a personal payment order …”

43    He also relied on his recent training as a factor which points against the exercise of the discretion to impose a personal payment order.

commisSioner’s submissions in reply

44    As to the evidence about the training referred to above, the Commissioner “welcome[d] this development”, although as counsel put it “[w]hether or not it arrests the rate of offending in the future … remains to be seen”. That said, the Commissioner submitted that the training by Mr Lacy should not be given much weight, because Mr Hassett was required to receive training in order to establish that he was a fit and proper person to obtain a permit in the first place and because the court heard nothing from Mr Hassett by way of an expression of an apology or contrition.

45    As to the application for a personal payment order, the Commissioner relied on what Tracey J said in The Parliament Square Case (No 2) [2018] FCA 1201 at [44] in support of the propositions that Mr Hassett well knew on 16 January 2019 that he was not permitted to enter the Site without a permit, and that he has, in effect, had his chances:

I am not persuaded that the Commissioner has made out a case for a personal payment order in the present case. I accept that Mr Hassett’s conduct suggests the need for penalties to be imposed at a level which will deter further misconduct. It does not, necessarily, follow that a personal payment order is required as an additional deterrent for an official who has not previously contravened the FW Act. It is to be hoped that consideration of the Court’s reasons and the imposition of the penalties in this case will cause Mr Hassett carefully to consider his responsibilities as a permit holder under the FW Act and not repeat the disgraceful conduct in which he engaged in the latter part of 2015. Any repetition may well be found to justify a personal payment order.

    (Emphasis added.)

46    Along similar lines, the Commissioner also relied on what Tracey J said in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Brooker Highway Case) (No 2) [2018] FCA 1214; (2018) 280 IR 356 at 360-361 [19]-[23]:

At the time of the contravention Mr Hassett had not been penalised for contravening the FW Act or its predecessors. He had, however, engaged in earlier contraventions of s 500 on another site in Tasmania: see Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Parliament Square Case) (No 2) [2018] FCA 1201 His liability for that misconduct had not been established in the Court prior to 12 October 2016: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Parliament Square Case) [2018] FCA 1080

Mr Hassett has failed to acknowledge that his contravening conduct is not acceptable on construction sites and has exhibited no contrition for his misconduct. Nor has he provided the Court with any assurances that there will [be] no repetition of his deplorable approach to his duties as a permit holder and union official.

Within minutes of entering the site Mr Hassett had been advised that he was not entitled to be there because of his failure to give prior notice. As a permit holder he was, or should have been, well aware that his entry without notice meant that he was not entitled to exercise rights as a permit holder on that day: see s 486 of the FW Act. Not only was he dismissive of the advice given to him by managers but he persisted in verbally abusing managers throughout his time on the site. The language used is essayed in the liability judgment at [22]. It is no understatement to describe his verbal outbursts as “insulting, demeaning, indecent and profane”. These outbursts persisted despite protestations by those around him (including a fellow union official) who plainly considered that Mr Hassett had crossed the line of propriety.

A number of managers were distracted from their normal duties during the period that Mr Hassett was on site.

I regard this misconduct as extremely serious. It constituted a deliberate and flagrant abrogation of the responsibilities that fell upon Mr Hassett as a permit holder under the FW Act. His failure to give notice before entering the site and to comply with other requirements, imposed on permit holders by the FW Act, gave effect to a union policy. So much is evident from what Mr Hassett said at the meeting with managers on 5 October 2016: We don’t recognise the Code and you know you’re not going to get Right of Entry notices so you’re just causing a fight.

47    The Commissioner also submitted that Mr Hassett is an elected official of the CFMMEU and that the evidence about the Tasmanian Branch not having any assets and so on is beside the point. As an elected official, he is by definition in a position to influence members.

consideration

48    Each of the six factors pointed to by the respondents (referred to in [32]) may be accepted as mitigating factors. I also accept that the respondents should be given some credit for the training exercises that have been conducted by Mr Lacy.

49    I do not accept the relevance of the fact that the Tasmanian Branch has no members or assets. The fact is that Mr Hassett is an elected official of the CFMMEU.

50    In my view, however, accepting that the matters in [32] may properly be put by way of mitigation, they do little to mitigate the seriousness of the offending in this case. Mr Hassett must well have known that he had no right to enter the Site, because quite apart from what he must be assumed to have known from his previous encounters in this court, he had only a little more than a month earlier handed back his entry permit to the Fair Work Commission.

51    As the Full Court explained in Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 at 58 [131]:

If a contravention does not involve any state of mind then it is for the party asserting any particular state of mind (be it a deliberate flouting of the law, recklessness, wilful blindness, “courting the risk”, negligence, or innocence or any other characterisation of state of mind) to prove its assertion. If, in the event, neither party discharges its onus to establish any particular state of mind in relation to the contraventions, the Court determines penalty on no more than the fact of the proscribed nature of the conduct. However, if any degree of awareness of the actual or potential unlawfulness of the conduct is proved then, all other things being equal, the contravention is necessarily more serious. Such awareness may be able to be inferred from the very nature of the conduct or representations constituting the conduct. However absence of such proof does not establish a mitigatory state of mind. It means only that the neutral state of mind required for liability has not been disturbed for the purposes of penalty. If a contravening party wishes to go beyond the neutral statutory state of mind for liability and positively assert a lack of consciousness of the character of the conduct for the purposes of penalty, that is a circumstance of mitigation which the contravening party must prove.

(Citations omitted, emphasis added.)

52    It follows that, because Mr Hassett must have known that by entering the Site without an entry permit he was contravening the FW Act, the contravention is necessarily a serious one.

53    Given that Mr Hassett is a repeat offender, the need for an order that is directed towards specific deterrence is, I would have thought, obvious. At the same time, of course, the overwhelming importance of deterrence as the protective purpose of the penalty does not exclude the need to determine a penalty which is proportionate to the contravening conduct.

54    Accordingly, a penalty of $10,000 will be imposed on Mr Hassett.

55    The CFMMEU is, as the court has said countless times, a large organisation with significant financial resources which exhibits apparent willingness to contravene the FW Act in a serious way to impose its will. In light of those factors, and of the need for deterrence of an organisation of its size, a penalty of $50,000 will be imposed on the CFMMEU for its admitted contravention.

56    This is also an obvious case for the making of a personal payment order. Mr Hassett was given a chance by Tracey J in The Parliament Square Case (No 2) [2018] FCA 1201 at [44] to reflect on his conduct and his responsibilities as a permit holder, but obviously enough he did not do so (at least in the way Tracey J envisaged). In my view, the imposition of a personal payment order is appropriate to ensure, as far as possible, that the burden of the penalty is recognised.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Callaghan.

Associate:

Dated:    21 April 2020